The 5 Day Statement
Within the first 5 days of starting a job, employers must give employees part of their ‘written statement of terms of employment’. This written statement must include the core terms of employment and is also referred to as the 5 Day Statement.
Within 1 month of starting the job, employers must give employees the remaining terms of employment in writing (such as entitlement to annual leave).
The 5 Day Statement
The 5 Day Statement includes:
- The full names of the employer and employee
- The address of the employer
- The place of work, or where there is no fixed or main place of work, a statement stating that there are various places or employees are free to set their own place of work or to work at various places
- The date the employment started
- The job title, grade or nature of the work (such as a brief job description)
- The expected duration of the contract (if the contract is temporary or fixed-term)
- The rate or method of calculating pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)
- What the employer reasonably expects the normal length of the working day and week to be (for example, 8 hours a day, 5 days a week)
- The duration and conditions relating to the probation period (if there is one)
- Any terms or conditions relating to hours of work, including overtime
The right to get the core terms of employment (in writing) is set out in the Employment (Miscellaneous Provisions) Act 2018 and updated by the European Union (Transparent and Predictable Working Conditions) Regulations 2022. Employers can face serious penalties if they do not comply.
Employers must sign and date the ‘written statement of terms of employment’, but there is no legal requirement for employees to sign it. Employer must keep a copy of the written statement throughout employees employment, and for at least a year after it ends.
The Work Life Balance and Miscellaneous Provisions Bill
The Work Life Balance and Miscellaneous Provisions Bill 2022 (“the Bill”) aims to increase the participation of women in the workplace and the take-up of family-related leave and flexible working arrangements by all. The Directive aims to encourage a more equal sharing of family related leave between men and women.
Right to request flexible working
The General Scheme proposes the introduction of a right for employees with children up to the age of 12 (or 16 if the child has a disability or long-term illness), and employees with caring responsibilities, to request flexible working arrangements for a set period of time for caring purposes. The General Scheme goes further than the EU Work-life Balance Directive (the Directive) and will apply to children up to 12 years old (or 16 as outlined above). The EU Directive provides this right for parents with children up to 8 years old.
Under the current draft, the employee requesting flexible working arrangements needs to have six months’ service with the employer before they can make a request and must make the request at least six weeks before the arrangement is intended to start. Employers must consider the request and will have four weeks to respond. They can either grant, postpone or refuse the flexible working arrangement and will be required to provide reasons for any refusal or postponement. In certain cases, the time period to respond can be extended by a further eight weeks.
Requests can be postponed for six months where an employer is satisfied that the commencement of the arrangement would have a substantial adverse effect on the operation of the business because of:
- seasonal variations in the volume of work
- the unavailability of someone to carry out the employee’s duties
- the nature of their duties
- the number of other employees availing of flexible working arrangements
- any other relevant matter
Flexible working arrangements will need to be documented in an agreement.
At the end of the flexible working arrangement, the employee is entitled to return to their original working arrangements, hours or patterns (employees are also entitled to request an early return to their original working arrangements).
Leave for medical care purposes
The General Scheme proposes the introduction of five days’ unpaid leave, per year, per employee, where, for serious medical reasons, the employee is required to provide personal care or support to family members or loved ones such as a child, spouse, cohabitant, parent and sibling. This leave cannot be taken in periods of less than one day and the employer may request evidence of the employee’s relationship with the person needing medical care, the nature of the medical care required and medical certification of the serious medical issue. This right is in addition to existing entitlements under the Carer’s Leave Act 2001 and force majeure leave.
Extension of the period during which time can be taken out from work to breastfeed
The General Scheme proposes an extension of the period from 26 weeks to 104 weeks following the birth of a child during which employees have an entitlement to paid time off from work or a reduction of working hours for breastfeeding purposes.
The Work Life Balance and Miscellaneous Provisions Bill was signed into law on the 4th April 2023. More information on the Bill can be found here.
Lay offs: What you need to know
As unpredictability in the global economy continues, company layoffs remain in the news. While layoffs may be necessary and appropriate, in many cases they cause more damage than benefit. Some leaders taken actions to reduce risks to company performance, reputation and long-term viability. What can we learn from these actions?
1. Be clear in the reason for layoffs
When it comes to lay-offs, some are strategic and forward-looking with higher valuations and others are focused solely on cost cutting. Examples of strategic reasons for lay-off include exiting less profitable sectors, products or markets due to changing customer habits. Businesses who are transparent regarding the reasons for layoffs see an increase in investor, customer and employee trust and engagement.
2. Use layoffs as a last resort
Most organisations that conduct layoffs do not see improved profitability, especially those that are highly reliant on innovation and growth. Leaders often underestimate the negative impact of layoffs on productivity, employee engagement, retention and brand reputation.
Effective leaders know that they should pursue all possible alternatives before embarking on layoffs, including temporary furloughs, redesigning jobs and work models, moving some workers to contractor status and offering more flexible benefits to create cost and operational flexibility.
3. Act fairly
Layoffs historically have had a negative impact on women and underrepresented employees. Recent news stories show the effect of layoffs among employees on maternity and health leave, as well as those in vulnerable positions with visas.
Reasons cited as acceptable for determining who is laid off include factors such as employee performance, tenure, experience and skill set. Effective leaders know that evaluating performance, skills and other factors is difficult and time-consuming, and that maintaining ongoing performance evaluation and review processes can position companies well for both ongoing and unanticipated events.
4. Know the people being laid off
Great leaders spend the time and thought required to understand not only who they are laying off but also why and the potential impact. They conduct workforce planning exercises using data science to understand employee performance, skills, networks and collaboration patterns to safeguard against losing key talent and creating unintended consequences.
5. Take responsibility and show appreciation
Leaders must ensure they take responsibility for layoffs and show appreciation for those impacted. They demonstrate their empathy and compassion through all communications. They understand their audience, allow opportunity for employees to process the information and share their feelings, and provide support and resources.
While layoffs are difficult for all involved, effective leaders handle them with care to avoid unravelling company purpose, culture and performance.
Updates to Probationary Periods
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force in Ireland on 16 December 2022.
These regulations introduce significant changes to the law on contracts of employment and working conditions for employees, but the new rules in relation to probationary periods in contracts of employment are of particular importance.
New Rules on Probationary Periods
In the private sector, the probationary periods of employees should not exceed 6 months. ‘In the interest of the employee’, the maximum duration for a public servant's probationary period is now 12 months. There is no further guidance on what is envisioned as being in the interest of the employee.
An employee may avail of certain categories of protected leave during the probationary period (maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave). If this arises, the probationary period shall be extended by the employer for the duration of the employee’s absence.
These Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
If an employee was subject to a probationary period which exceeded 6 months on the date the Regulations came into force (16 December 2022), and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the earlier of:
(i) the date the probationary period was due to expire
(ii) 01 February 2023.
We therefore recommend that employers review their current contracts of employment to check if any employees have contracts with probationary periods for longer than 6 months. This includes circumstances where any initial probationary period has been extended, as these periods should have expired on 1 February 2023 or earlier.
Probationary periods are a very useful tool for both employers and employees to trial the working relationship and ensure that the parties are a good fit and work well together. A well drafted contract will normally provide for a short notice period during the probationary period (customarily one week).
Employees will not usually have the benefit of the Unfair Dismissals Acts until they have achieved 12 months’ continuous service. Termination of an employee during the probationary period, and in accordance with the contract, can be a lower risk and efficient way to terminate an underperforming employee.
A probationary period does not, however, give an employer automatic authority to terminate employees and if allegations of misconduct, protected disclosures or discrimination, etc., occur legal advice should be sought.
Domestic Leave Updates
The Government has now approved the publication of the Work Life Balance and Miscellaneous Provisions Bill 2022, which will introduce five days of paid leave for those suffering from, or at risk of, domestic violence.
When enacted, this legislation will support workers to remain employed and maintain financial independence, allowing them space to seek the necessary support. This is the first statutory employment benefit when it comes to domestic violence, and its introduction will significantly impact employees suffering from, or at risk of, domestic violence.
Who can avail of the leave?
Any employee who has a contract of employment can avail of the leave. This includes part-time employees and fixed-term employees. There is no minimum service requirement for employees to avail of this leave. The Bill provides that employees are entitled to paid domestic violence leave from their employer where the employee or a "relevant person" has experienced in the past, or is currently experiencing, domestic violence.
What does "relevant person" mean?
A relevant person is defined in the Bill as:
- the spouse or civil partner of the employee;
- the cohabitant of the employee;
- a person with whom the employee is in an intimate relationship;
- a child of the employee who has not attained full age; or
- a person who, in relation to the employee, is a dependent person.
How does the Bill define domestic violence?
Domestic violence is defined as violence or the threat of violence, including sexual violence and acts of coercive control that has been committed against an employee or a "relevant person" by any of the following:
- the spouse or civil partner of the employee or relevant person;
- the cohabitant of the employee or relevant person;
- someone who is, or was, in an intimate relationship with the employee or relevant person; or
- child of the employee or relevant person who is of full age and is not, in relation to the employee or relevant person, a dependent.
What is the purpose of the leave?
The purpose of domestic violence leave is to enable victims of domestic violence to seek medical help, obtain counselling, relocate, seek advice or assistance, or obtain a safety order from the courts. As the leave also extends to relevant persons, employees may avail of the leave to assist the relevant person in any of these ways.
How many days leave are employees entitled to under the Bill?
Employees will be entitled to five days paid domestic violence leave in any period of 12 consecutive months.
What will the prescribed rate of pay be for employees availing of the leave?
The Bill provides that the Minister for Children, Equality, Disability, Integration and Youth may make regulations to prescribe the daily rate of domestic violence leave pay, which may be capped at a maximum daily amount.
Will employees be required to show proof of domestic violence?
No, employees will not be required to produce proof of domestic violence to avail of the leave.
Currently is status of this Bill is in Stage Four in the Seaned. The Bill, as initiated, is available here.
Once further updates have been given will we also provide further updated guidance.
Ringing in the New Year with the EU Whistleblowing Directive
The Protected Disclosures (Amendment) Act 2022 commenced operation on the 1st of January 2023.
This new legislation makes significant changes to the operation of the legal framework for the protection of whistleblowers in Ireland, the Protected Disclosures Act 2014. These changes have important implications for employers in the public and private sectors and for persons prescribed under section 7 of the Act.
The Protected Disclosures Act 2014 (the “Act”) protects workers from retaliation if they speak up about wrongdoing in the workplace. Persons who make protected disclosures (sometimes referred to as “whistleblowers”) are protected by this law. They should not be treated unfairly or lose their job because they have made a protected disclosure.
The most material changes to the Act include:
- the introduction of a requirement for many employers to have a whistleblowing policy
- the creation of a new criminal offence for non-compliance
- the introduction of new avenues of redress for whistleblowers who allege they have been penalised and the reversal of the burden of proof in such claims.
What is a protected disclosure?
Making a “protected disclosure” refers to a situation where a person who is in a work-based relationship with an organisation discloses information in relation to wrongdoing that the person has acquired in the context of current or past work-related activity. This is sometimes referred to as “whistleblowing”. Such a person is referred to as a “worker” or “reporting person” and disclosing information in relation to alleged wrongdoing in accordance with the Act is referred to as “making a report” or “making a disclosure”. The Act provides specific remedies for reporting persons who are penalised for making a protected disclosure. “Penalisation” includes dismissal and any act or omission causing detriment to a reporting person. Penalisation can be caused not only by the reporting person’s employer but also the reporting person’s co- workers or otherwise in a work-related context. The Act provides significant forms of redress for penalisation and other loss.
What do employers need to do?
The WRC has already advised that it is expecting an increase in Protected Disclosures Act claims this year therefore it is vital that employers ensure they are compliant with the amended Act and are in a position to deal with whistleblowing reports under the new regime.
Private sector employers with 250 or more employees will be required to establish formal reporting channels for workers to report concerns about wrongdoing in the workplace. In addition, all public bodies will be required to overhaul their protected disclosures procedures to comply with the Act by the commencement date. Employers with between 50 and 249 employees will not be required to establish reporting channels until 17 December 2023.
Even though companies with less than 50 employees are exempt from the requirements set out in the Act, it would be good practice for such employers to implement similar mechanisms to deal with the reporting of any wrongdoings in the workplace. A well communicated whistleblowing policy, and internal reporting procedures will ensure employees feel comfortable in reporting any wrongdoings. By having such procedures in place, companies have an opportunity to identify and manage risk at an early stage, helping to avoid or limit financial and reputational damage.
For further information on applications of the act, penalisation, reporting, offences under the act and more download our Protected Disclosures document HERE which contains further information surrounding the Act.
New Year, New Sick Pay Rules!
It's a new year and with that brings the enactment of the new Sick Pay Scheme. Ireland is one of few advanced economies in Europe without a mandatory sick leave entitlement and this new scheme now brings Ireland in line with other European countries that have mandatory paid sick leave for workers in place. Under the legislation, employers are now obliged to provide a minimum number of paid sick days annually from 2023.
Statutory sick pay provides for the entitlement of an employee to be paid a statutory sick leave payment by his or her employer in respect of a temporary absence from work due to illness, subject to medical certification from a registered medical practitioner. In the past, employees had no legal right to be paid while on sick leave from work, however since the 1st of January 2023 sick pay will be paid by employers at a rate of 70% of an employee’s wage, subject to a daily maximum threshold of €110.
To avail of statutory sick pay an employee must obtain a medical certificate and the entitlement is subject to the employee having worked for their employer for a minimum of 13 weeks. In all EU countries, medical certification of some form is a requirement to receive sick pay. However, there is some variation around the timing and frequency of when medical certification is needed.
Once an employees entitlement to sick pay from their employer comes to an end, if employees need to take more time off then they may qualify for illness benefit from the Department of Social Protection (DSP) subject to PRSI contributions. The scheme covers all workers and no waiting days are to apply (waiting days are the unpaid days in the event of illness).
What is the new Statutory Sick Pay scheme (SSP)?
The entitlement to paid sick leave is being phased in over 4 years:
2023 - 3 days covered
2024 - 5 days covered
2025 - 7 days covered
2026 - 10 days covered
Sick days can be taken as consecutive days or non-consecutive days. The sick pay year is the calendar year and therefore runs from 1 January to 31 December.
The first day in a year that an employee is incapable of working due to illness or injury shall be the employee’s first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly.
Employers can have a more generous sick pay scheme in place however they cannot give an employee less than the statutory amount. In determining whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters are to be taken into consideration:
a) the period of service of an employee that is required before sick leave is payable;
b) the number of days that an employee is absent before sick leave is payable;
c) the period for which sick leave is payable;
d) the amount of sick leave that is payable;
e) the reference period of the sick leave scheme.
Section 10 of the Sick Leave Bill provides for an exemption from the obligation for employers to pay the statutory sick leave payment where the employer is deemed unable to pay sick leave by the Labour Court. The exemption is for a period not exceeding one year and not less than 3 months, and while it remains in force the employer accordingly need not so comply.
Sick Pay Records
Records must be retained by the employer concerned for a period of 4 years and must include:
a) the period of employment of each employee who availed of statutory sick leave,
b) the dates and times of statutory sick leave in respect of each employee who availed of such
leave, and
c) the rate of statutory sick leave payment in relation to each employee who availed of
statutory sick leave.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation. For further information please see the Sick leave Bill 2022.
Budget 2023: What does it mean for employers?
Budget 2023 was viewed as a chance for the government to take decisive and effective steps to reduce the cost-of-living crisis. The measures announced were implemented against a globalized backdrop of rising prices, worsening fuel crisis and political pressure experienced both by employers and employees. What does it provide for employers?
Increased Small Benefit Exemption
For several years, tax rules have allowed employers to provide one non-cash incentive of up to €500 per year to an employee without incurring a tax charge if certain conditions are met. This is known as a small benefit exemption.
The minister has announced an extension of this scheme, which is expected to be a welcomed move. An employer may provide up to two qualifying awards per year, and the maximum tax-free amount per year has been increased to €1000. This will give employers more leeway in rewarding employees in a tax-efficient manner.
Employers frequently use the incentive as a bonus given to employees at the end of the year in the form of a Christmas voucher. The amendment is set to take effect on 28 September 2022, so the enhanced benefits will be available in the current tax year. The expansion of this scheme will provide employers with a cost-effective way to support their employees and reward their commitment.
Related Articles:
SSP to come into effect in January 2023
Use of CCTV Footage in Disciplinary Hearings
The crossover of data protection and employment law continues to be important when considering the use of CCTV in disciplinary processes.
Background
The case concerned a security incident arising out of disturbing graffiti being found on the property of the employer. The employer contacted the Gardaí, who recommended that the employer review CCTV footage to identify the perpetrator. During the CCTV review an employee, Mr. Doolin, was identified entering and exiting a tearoom at certain times, indicating that he was taking unauthorised breaks. A disciplinary process was initiated, and a sanction was issued.
Mr. Doolin complained to the Data Protection Commission (DPC) that his employer had unlawfully processed his personal data, as the employer’s CCTV policy indicated that the purpose of CCTV monitoring was for security and crime prevention and not disciplinary purposes.
The DPC dismissed the complaint, on the basis that the footage had only been processed once to investigate the graffiti incident, which was a security incident, and that the employer subsequently relied on Mr. Doolin’s admissions during the investigation.
The Circuit Court dismissed Mr. Doolin’s appeal of the DPC’s decision, observing that Mr. Doolin had admitted a breach of security and that disciplinary action was taken against him for security purposes.
The High Court overturned the Circuit Court decision, on the basis that there was no evidence that the disciplinary action was carried out for security purposes. The employer relied on the CCTV footage and a table was included in the investigation report that set out his times of entry and exit to the tearoom.
The decision of the Courts
It found that the processing was not for a related purpose and was incompatible with the specified purpose of security reasons. It noted that the original purpose of attempting to detect the perpetrator of offensive graffiti was irrelevant to the incidental monitoring of Mr. Doolin taking unauthorised breaks, there was no evidence that the taking of unauthorised breaks was a security issue. In this case, it was clear that Mr Doolin’s data was used for a purpose other than, and incompatible with, the specified purpose, and was therefore unlawful.
Conclusion
Employers should continue to follow best practice in the use of CCTV footage in the workplace by:
- Reviewing and updating their policy on a continuous basis
- Conducting a data protection impact assessment before deploying CCTV cameras in the workplace
- Deploying CCTV in areas of particular risk, and not where employees have a high expectation of privacy
- Clearly communicating the location of CCTV cameras
- Not as a matter of course capturing footage for one purpose and using it for another
- Clearly communicating to employees that footage captured may be used not only for security purposes but also the employee investigations and disciplinary proceedings
- Ensuring CCTV review is conducted in a manner that allows any subsequent issues to be dealt with in a manner compliant with natural justice; consider who will review the footage, and avoid overlap with those charged with conducting HR investigations.
Termination of Employment
An employer must have a reason to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is for reasons of capability, conduct, capacity, redundancy, contravening the law, or some other substantial reason.
Giving Notice
At a minimum, employers must give employees the following statutory periods of notice.
Duration of employment Minimum notice
- 13 weeks to 2 years -1 week
- 2 to 5 years -2 weeks
- 5 to 10 years -4 weeks
- 10 to 15 years-6 weeks
- 15 years or more -8 weeks
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given.
An employer may dismiss an employee without notice for gross misconduct e.g assault, stealing or serious breach of employment policies. Employment contracts or handbooks may contain further examples of gross misconduct.
Termination Procedures
The Workplace Relations Commission has introduced a Code of Practice on Grievance and Disciplinary Procedures which employers should follow when dismissing an employee. Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
- Dismissal
You can read more about Unfair Dismissal in our previous blog post, Unfair Dismissal Claims & How to Avoid Them
Bright Contracts Software has a “Resignation and Termination” policy in the “Terms and Conditions” section of the handbook. Furthermore, in the Company Policies and Procedures section, there is a Grievance/Dispute Procedures which you can edit to your company needs.
