Posts Tagged ‘employment law’

News from the Courts – Employees Rest Breaks

Tuesday, October 1st, 2019

Earlier this year, 92 employees at Paddy Power who were denied rest breaks were awarded €90,000 in compensation by Workplace Relations Commission who found in their favour.

The recent case of A Store Manager v A Retail Pet Shop is again a timely reminder of the necessity for employers to ensure that employees are not expected to be at the employer’s disposal during daily and weekly rest breaks.

These recent legal trends in Ireland are very much in line with EU direction on this – focusing on providing employees with adequate rest breaks and on protecting the quality of employee downtime.

In the case of A Store Manager v A Retail Pet Shop, the Complainant lodged a number of claims for alleged breaches of the Organisation of Working Time Act (“the Act”) following the termination of her employment.

The Complainant alleged that the employer had breached her rights under Section 13 of the Act by requiring her to remain available to take work calls during her weekly rest periods. She claimed that had been instructed by her manager that she was required to have her work phone switched on at all times even when she was off duty and claimed that the manager constantly called her on her days off about minor issues and that this disrupted her family and personal life regularly and interfered with family activities.

Records of telephone calls between the Complainant and her Manager which occurred outside of her normal contractual daily working hours showed several telephone calls and text messages which occurred later than 9pm. An email sent by the Complainant’s manager to the Store Managers read as follows “I expect every Store Manager to have their phone switches on at all times, unless you are on holidays and have handed the phone over to your assistant manager, it is your responsibility to have your phone on you at all times…”.

The WRC was satisfied that the Complainant was required to be contactable by her Manager while on her weekly rest periods and that she was in effect at her employer’s disposal for that period of time. The WRC found that the requirement that the Complainant be contactable by her manager during the periods she was off duty amounted to an interruption of the Complainant’s weekly rest period and that the employer had contravened Section 13 of the Act. The WRC Adjudicator found that the Complainant’s claim in this regard was well founded.

Key takeaway:

The case is interesting as it represents a further example of the recent trend both in Ireland and the EU generally in favour of prohibiting employers from blurring the lines between working time and rest time.

While there can be some limited exceptions, as a general rule of thumb employees should be allowed to enjoy their statutory rest breaks without being disturbed by their employer.

As a reminder, all Workers are entitled to:

  • A 15-minute break for the first four and a half hours worked and if they work more than six hours, they are entitled to 30-minute break.
  • 11 consecutive hours rest in any period of 24 hours
  • 24 consecutive hours rest in any period of 7 days and this should normally follow on from one of the 11-hour rest periods mentioned above, or as an alternative your employer can give you two 24-hour rest periods in a week if it follows a week, in which you did not get any 24-hour rest periods. Unless your contract states otherwise the 24-hour rest period above should include a Sunday.

Voltedge Management

News from the Courts – Employee dismissed during probation period

Tuesday, November 13th, 2018

Employee dismissed during probation period awarded €90,000 in compensation

In a recent case before the Labour Court where a well known hotel dismissed an employee during the probation period because they felt it wasn’t working out, were found to have unfairly dismissed the employee in question and the employee was awarded a settlement of €90,000 in full and final settlement.

At the hearing, the claimant said he was headhunted by the Employer to accept a role as General Manager of the Hotel which meant he had moved from Dublin to Kerry to take up the role in January 2018 and that he was dismissed without warning on 27th April 2018 by the Managing Director. While the employer rejected that he had indeed been headhunted, the Managing Director felt he was entitled to dismiss the claimant as the contract of employment unequivocally provides that either party can terminate the contract by giving written notice during the probationary period.

However, when the matter was reviewed by the Court, they noted that the Claimant was furnished with a 36-month fixed term contract, which provided that “All dismissals will be carried out in accordance with the Provisions of Part Two of this Contract”. Part Two of the contract outlined the disciplinary procedures, which included:

  • the carrying out a full investigation before dismissal;
  • being informed of the reasons for the dismissal;
  • the right to reply;
  • the right to be accompanied at meetings and the right to appeal a decision to dismiss.

Having considered the positions of both sides, the Court was of the view that the procedures adopted in the termination of the Claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court was satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court was satisfied that he was denied natural justice.

Voltedge Management

News from the Courts – Paddy Power Loses Case

Monday, September 17th, 2018

The Workplace Relations Commission has found the Bookmakers to be in breach of the Working Time Act 1997, as it was found that employees were working over the legal 4 hour and 30 minutes, without taking 15-minute breaks.

The employer had used an electronic sales system, which kept a somewhat reliable record of employee’s activity on the till, and when they were off it. It was argued that the employer did not ensure the employees received statutory breaks, and that inactivity on the till could not count as a break.

The employees also stated they often had to deal with customers during their given break times, meaning they did not get uninterrupted breaks set out under Law.

Submissions from Paddy Power declared staff were encouraged to take breaks at quieter times and offered a flexible regime, to take personal-paid time off if they wished. However, the WRC did not agree that the system in place accurately measured break times, and that the flexible leave did not mean the employer was abiding by the 15-minute break rule for shifts more than 4 hours 30 minutes.

A clock- in, or similar system, was not used at the Paddy Power facility in question, which may have helped to prevent this breach from occurring.

It is important for employers to remember that it is there responsibility to ensure employees take their statutory breaks, and that these should be uninterrupted and taken in full.

(ADJ-00012077/12079/12080 WRC)

News from the Courts

Monday, May 14th, 2018

Managing complaints when an employee is out sick – €17,500 awarded to an ex-employee.

In a recent ruling by the Labour Court (as outlined in IRN), a compensation payment of €17,500 was awarded to an ex-employee of a company.

The employee had experienced some difficulties in the workplace and, following two meetings with the Directors of the company in March 2015, the employee had gone on extended sick leave for up to 6 months with a medical certificate stating workplace related stress. The employee – through his solicitors – then invoked the company’s bullying and harassment policy and requested that an investigation be initiated.

The company responded by stating that they would wait for the employee to return to work, and which stage it would ‘discuss any issues you may have, in line with your contract of employment’.

The employee again requested that the policy request be activated. There was no further response from the company and the employee resigned with immediate effect on 10th June 2015.

Although there were several issues with the employee’s performance at work, the employee claims that he made repeated informal complaints of bullying and harassment.

The Court concluded that no investigation was ever undertaken and that certain claims made by the company at the hearing had never been put to the employee when he was in employment.

Because no investigation was instigated (in any form), the Labour Court viewed it reasonable for the employee to resign and effectively take constructive dismissal.

This is a very important judgement which establishes that it is not enough for a company to just wait for the return of an employee who has made an official bullying complaint. Employers need to be pro-active and – at the very least – plan for a complaint to be heard on the return of the employee from sick leave. Other employment issues cannot override the employer’s approach to an employee who makes a bullying complaint and should be treated as separate issues.

Voltedge Management can offer support, advice and independent investigators if required.  Just email us on info@voltedge.ie or call the office on 01 5252914.

News from the Courts

Monday, April 16th, 2018

Clarification for employers on the payment of paternity leave at a recently WRC hearing

In a case that was heard at the WRC recently where a male employee claimed discrimination on the grounds of gender when his employer did not provide a top up payment when he took his 2 weeks paternity leave but did provide a top up payment of female employees who took maternity leave, the WRC found that employers were not required to provide a top up payment as paternity leave was not comparable to maternity leave.

In reaching this decision, the WRC reviewed both the Irish and European legislation that provided for maternity leave and clarified that it was specifically designed for females on the basis of pregnancy and maternity at this very special time and that paternity leave was a different leave category, therefore employers can have a different term for payment for female employees on that basis.

However, if employers have already introduced company paid paternity leave, this finding does not mean that they can now stop paying male employees as they had already established this policy in advance of this hearing.

It is possible that there may be additional cases relating to this matter and that this matter might well become a topic for debate in the future but for now, the position has been clarified in that maternity leave and paternity leave are viewed differently by the WRC and therefore employers can apply payment terms differently.

 

Voltedge Management

Your HR Questions Answered

Monday, March 12th, 2018

We aim to give our readers and followers the best advice when it comes to managing people effectively. Every month you can read a digest of some HR questions that might be relevant for you.

Q: Are my employees entitled to a day off on Good Friday?

A: Good Friday is not a statutory public holiday in Ireland. While some schools, banks and other businesses close on that day (it is a Bank Holiday), employees do not have an automatic entitlement to time off work on that day; therefore, is no entitlement to Public Holiday pay for this day. 

Q: What is an intern and how should they be treated in the work context?

A: In the absence of any definite guidelines, the terms and conditions of internships vary considerably from business to business. However, all employers need to be aware that, depending on the circumstances of the internship and the actual nature of the engagement/work being undertaken, there is a risk that the intern may be found to be an employee. As a rule of thumb, a genuine internship will generally be for a relatively short period of time and the intern will be engaged mostly to “observe/train” rather than actually work.

Q: Do I need to give my intern a contract, seeing as they are not an employee?

A: When engaging an intern, ensure you have a written agreement with the intern, setting out the terms of the internship. This document should state the parties’ expectations of the internship and set out certain basic terms around training, mentoring and feedback. This document should confirm that the purpose of the internship is to give the intern an opportunity to learn about the business and should confirm that the intern is not an employee.

Q: Should the intern be given any other documents when they start?

A: Yes, the intern should be made aware of the company’s policies and procedures handbook that will be applicable during the placement. For example, the intern should be made aware of the organisation’s Anti-Bullying and Harassment policies. Similarly, they should confirm that they will abide by the organisation’s requirements with respect to confidential information. The employer should note that the provisions of the Safety, Health and Welfare at Work Act, 2005 apply to all parties in the workplace, and not just employees.

We have a team of trained and skilled investigators and consultants who have extensive experience in this area and would be happy to discuss any issue of concern with you. Just email us on info@voltedge.ie or call Ingrid on 01 5252914.

News from the Courts

Monday, March 12th, 2018

Fixed Term employee awarded almost €50,00 due to loss of increment entitlements

Recently the WRC awarded a County Council worker who had been engaged by one county council on a fixed term contract, and was subsequently hired on 4 more fixed term contracts.

However, despite the fact that her original contract stated that increments would be paid annually based on meeting a certain criteria such as attendance, conduct and performance, she did not receive any for the subsequent years.

The award was made on the basis that the employer was in breach of section 6 of the Fixed Term Work Act 2003 and as a result the worker was at a loss of almost €50,000 in earnings had the original increments been given during the relevant years.

In their defence, the Council said that the issuing of the contracts was an error and that she had exceeded the salary grade however as they did not set the pay terms, it was found to be invalid.

HR Brexit Update

Monday, January 8th, 2018
Get your Business HR Brexit Ready

Get your Business HR Brexit Ready

Two-thirds of UK businesses questioned in a survey were unaware what documents they needed to keep on file for sponsored overseas workers. 95% of company sponsors were not reporting all the required changes in circumstances for sponsored workers, a report commissioned by immigration law firm Migrate UK found.

The Brexit journey will impact all businesses, whether trading with the UK or not, the broad implications of our closest neighbour no longer being part of the EU requires a HR Brexit strategy for all businesses and especially if companies are working with an international team or client base.

We want to support you in getting your business HR Brexit Ready and managing the dynamics that will begin to present themselves as the transition continues.

Email HRBrexit@voltedge.ie to see how we can help your business understand Brexit and be ready for its impacts.

Is Your Business HR Brexit Ready?

Wednesday, May 24th, 2017

Voltedge is delighted to be co-hosting an event on June 15th where our panel of UK and Irish experts will identify the HR roadmap to prepare your people and your business to navigate Brexit. With employees becoming more concerned about how Brexit may impact them personally this is a critical time to give clear and appropriate direction. As the countdown for the United Kingdom’s general election continues, the outcome will have a significant impact on the Brexit process and this in turn, will impact you business. 

This is the first of HR Brexit Events and we’d be delighted to speak to you further on any HR Brexit queries you might have and advise you on how to navigate your business and your team.

Please email admin@voltedge.ie with any queries.

You HR Questions Answered

Monday, December 5th, 2016

Every month, we answer HR questions and give the best advice to our readers and followers.

Q: What advice can you give me if everyone on my team wants to book days off over Christmas but I really need a core team to work as we have some customer support requirements – I ended up doing it last year because the same thing happened – everyone had already booked time off by the time I realised it, it was too late?

A: The taking of holidays and annual leave is at the discretion of the company, so ensure you consider every request for time off fairly and only approve the time off you can accommodate. It would be a good idea to brief the team now, and explain to them that there will be a need to have a rota of staff working over the holiday season and that they need to consider this before sending in requests for time off. Allow them to organise the rota amongst themselves where possible, but if this is proving too challenging for them, then you should make the decision for them, giving due consideration to personal circumstances of the people on your team. The best thing to do is communicate soon and often so that everyone is clear as to the process that needs to be in place and why.

Q: We want to give staff a little bonus for Christmas, what’s the best way to do this so that so that they are not paying huge amounts of money in additional taxes.

A: The Revenue have very good guidelines on discretionary bonuses – check www.revenue.ie for more information on this. Generally their advice is that a cash bonus at Christmas should be put through the payroll and PAYE/PRSI and USC applied as normal. Where the bonus is in non-cash form with a value not exceeding €500 (€250 prior to 21 October 2015) PAYE/PRSI and USC need not be applied to that benefit (covered by the one off small benefit exclusion).

If you need advice on HR issues, drop us an email at info@voltedge.ie or contact the office for any additional information 01-5252914.

Employment Law Update 2016

Monday, December 5th, 2016

As 2016 draws to a close, we look back at the last 12 months and share with you our review of some of the key employment law changes of the year.

National Minimum Wage Increase

With effect from 1 January 2016, the National Minimum Wage was increased from €8.65 per hour to €9.15 per hour. This increase was made following a recommendation from the Low Pay Commission (LPC) in 2015. The LPC was established as an independent statutory body in July 2015. Its primary function is to examine and make recommendations annually to the Government on the appropriate level of the NMW.

In January 2017, the minimum wage rate will rise to €9.25 per hour.

Justification of Retirement Age

The Equality (Miscellaneous Provisions) Act 2015 has introduced significant changes to retirement ages. Prior to the commencement of the Act (1 January 2016), the Employment Equality Acts 1998 – 2015 provided an employer with the ability to fix a compulsory retirement age, as set out in Section 34 of the Acts. This remains the case however, Section 34 of the act has been amended to align it with the Employment Equality Framework Directive 2000/78/EC. Therefore, employers are now required to be able to objectively justify their retirement age. The retirement age should seek to achieve a legitimate aim such as intergenerational fairness, and the means of achieving the aim should be both appropriate and necessary.

Furthermore, the amendment to s.6 of the 1998 Act means that employers must now objectively justify offering a fixed-term contract of employment to a person who has reached the organisation’s retirement age.

Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

Under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, which came into effect on 29 April 2016, specified minor convictions will become spent after 7 years. This means that an adult convicted of an offence covered by the Act does not have to disclose the conviction (to a prospective employer for example) after 7 years, except in certain circumstances. The Act does not apply to any sexual offence, an offence that was tried in the Central Criminal Court, or an offence resulting in a prison sentence of greater than 12 months.

In the recruitment process many employers have required applicants to declare any previous convictions on their application forms. This Act will now restrict employers from asking for such declarations and employees cannot be penalised for non – declaration of spent convictions.

Paternity Leave

The Paternity Leave and Benefit Act 2016 commenced on 1 September 2016. The Act enables a “relevant parent” to take two weeks’ paternity leave which must commence within the first 26 weeks of the birth/adoption of a child. Subject to eligibility and notification criteria being met, paternity leave will apply to births/placements that take place on or after the 1 September 2016. During paternity leave, employees who have the necessary PRSI contributions and hold a Public Services Card are entitled to paternity benefit from the Department of Social Protection (€230 per week).

Get advice on Employment & Labour Laws in Ireland. Contact us now at 01-5252914 for your Paternity Leave policy or any other advice.

Margaret McCarthy, HR Consultant