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5
Jan 23

Posted by
Jennifer Patton

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.

Posted in Employment Law

1
Jan 23

Posted by
Jennifer Patton

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.

 

Posted in Employment Law, Sick Leave/Absence Management, Staff Handbook

20
Oct 22

Posted by
Saoirse Moloney

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

 

Posted in Employee Contracts, Employment Law

11
Oct 22

Posted by
Saoirse Moloney

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:

  1. Reviewing and updating their policy on a continuous basis
  2. Conducting a data protection impact assessment before deploying CCTV cameras in the workplace
  3. Deploying CCTV in areas of particular risk, and not where employees have a high expectation of privacy
  4. Clearly communicating the location of CCTV cameras
  5. Not as a matter of course capturing footage for one purpose and using it for another
  6. Clearly communicating to employees that footage captured may be used not only for security purposes but also the employee investigations and disciplinary proceedings
  7. 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.

Posted in Discrimination, Employment Law, Staff Handbook

9
Sep 22

Posted by
Saoirse Moloney

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.

Posted in Dismissals, Employee Contracts, Employee Handbook, Employment Law

19
Aug 22

Posted by
Saoirse Moloney

Effective Absence Management

One of your employees calling in sick or saying they can’t make it into work but not giving a reason as to why can be frustrating and disruptive.

The best thing to do to manage this is to have an absence policy in place. The policy should outline how sickness-related-absences will be dealt with and should specify what period of time forms:

• Short-term absence
• Long-term absence
• Unauthorized absence

Your absence policy should be shared with your employees. Doing this will ensure that employees know how each instance of absence will be handled and what procedure will be followed.

Furthermore, having an absence policy in place will ensure consistency.

How to reduce sickness absence in the workplace

Return to work interview
One of the easiest ways to reduce sickness absence is to conduct a return to work interview. This conversation will bring to light any issues an employee has, whether it’s personal work or work-related. It could mean that you alter their working hours, allow them to work from home, or take time off for medical appointments.

Record Keeping

Record keeping is another useful practice. Tracking employee absences can be very beneficial to see what patterns may appear with the absence of an employee. For example, does one of your employees always miss the Friday of a Bank Holiday? Or say they’re unwell the Monday they’re due in after a week off?

Monitoring absences will make these patterns easier to spot and gives you proof if you need to speak to the employee.

Communication

Whether it’s a short or long-term absence, it’s important that you reach out to the absent individual. You can do so by phone, email, and in some cases, a home visit. Reaching out, it will give you an insight into their illness and how long they think they will be absent. It will also help you prepare for their return.

Dismissal due to sickness absence

In extreme cases, such as long-term sickness, dismissal for absence may be considered.
If you decided to go down the dismissal route, you’ll need to show that the procedure used was fair and reasonable. Failure to follow fair procedures may leave your company open to a claim for unfair dismissal.

Bright Contracts Handbook contains an absence policy in the “Terms & Conditions” section of the handbook.

Related Articles

Mental Well-being in the workplace

The Importance of HR Policies & Procedures

Posted in Company Handbook, Employee Handbook, Employment Law, Health & Safety, Sick Leave/Absence Management

8
Aug 22

Posted by
Saoirse Moloney

Discrimination Case Law: Doherty v St John of God Community Services

St John of God was ordered to pay €45k for refusing to allow a pregnant employee to work remotely during the pandemic.

In this blog post, we will discuss the facts, and what employers should do to avoid any claims.

Facts

The employee, in this case, claimed that her inability to work from home during the Covid-19 outbreak and her role change constituted discrimination based on her family situation. She explained that she believed she was given no choice but to take sick leave. She was not given the same options as other parents or other pregnant women such as reduced hours, using zoom calls to contact service users as an alternative, and especially working from home.

She said in a conversation with her supervisor she was told that if she couldn’t work from home her only option was to take sick leave even though other staff in her department were allowed to work from home. Even after sending in her sick cert, she was asked to participate in Zoom calls, attend to phone calls and text messages and contact other staff. After this, she took ill, with stress and upset a factor, and had to be hospitalised.

In July 2020 a colleague contacted her about coming back to work, initially at a site that facilitated social distancing, but she was contacted being told she was being transferred to a more public-facing role which was not ideal for someone who is 30 weeks pregnant.

Note for Employers

Employers should establish clear policies and procedures to manage remote work. Policies should establish guidelines and expectations in order to ensure fair and consistent practices, as well as legal compliance when decisions are made based on the role’s suitability for remote work.

Bright Contracts has a Working from Home policy in the “Terms and Conditions” section of the Handbook.

 

Related Articles:

How to Prevent Discrimination in the Workplace

 

Posted in Discrimination, Employment Law, Employment Tribunals

29
Jul 22

Posted by
Saoirse Moloney

New Worker’s rights passed by the Oireachtas

Over the last few weeks, The Oireachtas has approved two new workers’ rights: sick pay and tip protection. Both of these will have a significant impact on millions of workers nationwide.

Sick Pay for eligible employees

As discussed in a previous blog post: Preparing for New Sick Pay Rules. The Sick Leave Bill 2022 has been passed by both Houses of the Oireachtas. This gives eligible employees in Ireland the right to paid sick leave. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110.

To receive statutory sick pay, an employee must obtain a medical certificate and have worked for their employer for a minimum of 13 weeks. Employees who require further time off after their employer’s entitlement to sick pay expires may be eligible for illness benefits from the Department of Social Protection, subject to PRSI contributions. The Bill has now been signed into law by the president. 

The Payment of Wages (Amendment) (Tips and Gratuities) Bill

In addition to passing the Sick Leave Bill 2022, the Oireachtas passed new legislation to ensure those working in the hospitality industry receive their fair share of tips and gratuities. This will clarify the definitions of required charges, service charges, tips, and gratuities. In addition, it will exclude tips and gratuities from a worker’s contractual wages, and oblige employers to distribute tips received electronically, fairly, equitably, and in a transparent manner. It will also ensure that any charge referred to as a ‘service charge’ is distributed to employees in the same way as tips received.

Employers should begin reviewing their sick leave policies to ensure that they comply with the upcoming statutory sick leave scheme. Employers in relevant industries should also review their policies and procedures for managing tips, gratuities, and service charges to ensure they are in line with the changes in the law.

Posted in Employee Contracts, Employee Handbook, Employment Law, Sick Leave/Absence Management

25
Jul 22

Posted by
Saoirse Moloney

How to Prepare an Anti-Bullying Policy

Prevention is the best way to avoid the risk of bullying at work. The purpose of an effective policy is not simply to prevent improper conduct and behaviour but also to encourage best practices and a safe and harmless workplace where such behaviour is unlikely to occur.

Employers should adopt, monitor, and implement an effective and accessible policy on bullying in the workplace.

Preparing the Policy

The policy and complaints procedure should be adopted, where appropriate. Simple direct language should be used in the policy. Information given to employees should be in a form, manner and in an appropriate language that is likely to be understood by the employees concerned.

The policy should be written, dated, and signed by a responsible person in senior management and updated when appropriate.

Scope of the Policy

The policy should:

  • Describe what is meant by bullying at work
  • Include a non-exhaustive list of examples of bullying behaviour relevant to the employment
  • Given the name or job title of the person who may be approached by a person wishing to complain of bullying at work
  • State that the protection extends to bullying at work by management, fellow employees, subordinates, clients, customers, and other business contacts as well as work-related social events
  • State that all complaints of bullying will be taken seriously and will be followed through to resolution and that employees who make a complaint will not be victimised.

Allocation of Responsibilities in Prevention of Bullying at Work

The policy should state that management, others in the position of authority, and workplace representatives have a particular responsibility to ensure that bullying at work does not occur and that complaints are addressed promptly.

The policy should state that, management will:

  • Provide a good example by treating all people in the workplace with respect
  • Promote awareness of the policy and complaints procedures
  • Be vigilant for signs of bullying at work through observation and through seeking employee feedback and take action before a problem escalates
  • Deal sensitively with employees involved in a bullying complaint
  • Explain the procedures to be followed if a complaint of bullying at work is made
  • Ensure that an employee making a complaint is not victimised for doing so
  • Monitor and follow up on the situation after a complaint is made so that the bullying at work does not reoccur.

Bright Contracts has a preformatted Anti-Bullying Policy under the ‘Bullying and Harassment Policy and Procedure' section of the Handbook in the software, which is fully compliant with current employment laws.

Related Articles: 

Bullying in the Workplace: What you need to know

Bullying in the Workplace: What constitutes as bullying?

What You Need to Know About Staff Handbooks

 

Posted in Bullying and Harassment, Employee Contracts, Employee Handbook, Employment Law

22
Jul 22

Posted by
Saoirse Moloney

Bullying in the Workplace: What you need to know

We have already discussed in a previous blog post Bullying in the Workplace: What constitutes bullying? What bullying is and what constitutes bullying. In this post we are going to discuss the effects bullying have at work, the role of the employer and the employee to prevent bullying at work and actions and measures you can take to tackle bullying.

The effects of Bullying at Work

Workplace bullying and related complaints can have a range of effects on both employees and employers. For the employer, the effects can include reputation damage, absences of employees in the workplace, reduced productivity, increased costs, poor morale, and loss of respect for managers and supervisors.

For the employee or the target of bullying behaviour, the effects can include stress, low morale, reduced performance, and lower productivity. Some people decide to leave their employment, exposing themselves to financial strains.

Prevention of Bullying at Work- Role of Employer

Every person in the workplace has a role in promoting a positive workplace free from bullying behaviour.

An employer should:

  • Uphold the duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour that is likely to risk an employee’s safety, health or welfare at work. Employers must act reasonably to prevent workplace bullying patterns developing, where there is a complaint, the employer must react reasonably, assess the complaint, and record actions on each case.
  • Develop a workplace anti-bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints and that disciplinary action may follow where bullying has occurred.

Prevention of Bullying at Work- Role of Employee

How an employee behaves in a way that is acceptable. Employees both individually and within teams and groups, have a role in promoting positive behaviour to others, relating in a clear, civil and respectful way to everyone in the workplace.

Under section 13 of the 2005 Act employees’ duties include to:

  • Comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect their safety, health and welfare of any other person who may be affected by the employee’s acts
  • Co-operate with their employer or any other person so far as is necessary to enable their employer or any other person to comply with the relevant statutory provisions.
  • Not engage in other behaviour that is likely to endanger a person’s own safety, or their health and welfare at work or any other person at work during the course of the employment.

Measures to Prevent Bullying in the Workplace

  • Promotion and reinforcement of a positive workplace culture
  • Effective Anti-Bullying policies, to be used and promoted in the workplace
  • Widespread policy awareness
  • Appropriate training as required for those managing complaints and for line management
  • Contact person/appropriate support available

There may be value in appointing a Contact Person who acts as the first step for anyone enquiring about a possible bullying case. Where the organization can support this, it can help to resolve matters earlier and more effectively.

The Contact Person should be supportive and listen and offer guidance in line with company policy and procedures all on a confidential basis. This person should be carefully selected and trained. The main purpose of this role is to be supportive, they will have no role in the investigation of any complaints and should not be tasked with any further involvement in the details or right and wrongs of a complaint.

Related Articles:

Bullying in the Workplace: What constitutes as bullying?

What You Need to Know About Staff Handbooks

 

 

Posted in Bullying and Harassment, Employee Contracts, Employee Handbook, Employment Law

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