and What to Watch Out For in 2019

2018  saw a  number of significant changes to employment law for employers . In this summary, we review some of the highlights of the year and examine what these mean for employers for the year ahead.

January

On 1^st January 2018  the Mediation Act 2017 came into force  and many would argue that there has been very little written on its  on its relationship and impact to current employment law. One of the main reasons for this is the exemption under Section 3(1)(b) of the Act to disputes that fall under the functions of or being investigated by the Workplace Relations Commission (WRC) including disputes under Part 4 of the Workplace Relations Act 2015. The application of the act will however impact claims outside of the WRC such as bullying, contact and gender discrimination and hence employers and employees would be prudent to use mediation in the first instance of dispute resolution.

February

With the centenary of the Women’s right to vote, and Iceland’s historic decision to make gender pay differences illegal in Jan 2018,  gender equality has received significant media attention this year.  In response to a Eurostat 2015 statistic which highlighted  the gender pay gap for Ireland at 13.9%, The Irish Human Rights and Equality Commissions Bill 2017 was proposed and passed by the Seanad in Oct 2017. Known as the Gender Pay Gap Information Bill  2017, this report gives power to the commission to require organisations that have 50 employees or more to report on the gender pay gap within their business. With this in mind and as gender discrimination is often a basis for claims in the WRC, employers may see disparities in gender treatment and pay claims more likely in 2019.

March

The high profile case of Cox Vs RTÉ 2018 in the WRC brought significant attention to the ongoing subject of age discrimination and compulsory retirement. Currently Irish law allows for mandatory retirement ages in contracts and policies within certain stipulations. This is a considered a contentious issue by many, primarily driven by the widening pension pay gap as the state increases the traditional pension retirement age from 65 to 68.

The Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016 is an opposition led Private Members’ Bill and if implemented as it is currently drafted, would have the effect of restricting an employer’s ability to contractually impose a mandatory retirement age. In the interim , employers are advised to ensure that there is consistency and a definitiveness about pension wording in employee contracts and all of the supporting documentation around it such as  pension scheme details, employee handbook, and internal policies and procedures to defend potential claims.

April

The issue of sexual harassment has received unpreceded media attention thanks primarily to the #me-too and #timesup social media campaigns which levelled a number of allegations of sexual misconduct at a number of high profile individuals. These movements have given women and men across the globe the much needed opportunity to speak out against sexual harassment in their workplace. This ‘fightback’ approach was evidenced recently by The Equality commission in Northern Ireland which released statistics indicating that there has been a 31% increase in sexual harassment complaints over the last 5 years. Employers are advised to take this opportunity to review their sexual harassment and diversity policies  and ensuring that training to create awareness and understanding of these policies is provided and  promotes  that a culture where victims can come forward without fear of victimisation

May

The much publicised GDPR ( General Data Protection Regulation) 2018 came into effect on 25th May. This regulation presents significant changes to the way employers gather, retain and process personal data. While  the focus on GDPR has certainly decreased in recent months, the Government’s announcement of a   dramatic increase in funding for the OPDC from  €1.6 million in 2011 to €15.4 million in 2019 indicates that this will increase the number of audits completed by the OPDC in 2019/20.

For employers, GDPR requires the creation of a number of mandatory policies and procedures. All employee handbooks, policies and procedures issued prior to this date referring to the Data Protection Acts 1988 to 2003 should now  reflect changes. Employers should also ensure that their employee handbook references a summary of the changes and directs users to their comprehensive policies such as data breach and destruction policies and data subject rights and access request policies .

June

The Parental leave (amendment bill) 2017 was passed by the Dáil on 13^th June and is now currently at second stage within the Seanad. If enacted, it will come into effect within three months of its passing. This bill extends the duration and applicability of Parental leave from 18 working weeks to 26 weeks in respect of each child and increases the qualifying age limit from 8 years currently to 12 years ( or 16 years of age where the child has a disability or long-term illness). Parents who have availed of Parental leave to date will be eligible to avail of the additional 8 weeks once enacted into law. However, given that the bill has not been established into law employers should continue to process Parental Leave requests as current law dictates while ensuring that  preparations should be set in motion to  allow for the implementation of the new entitlements in 2019.

July

Following review, The Low Pay Commission announced that it was recommending an increase to the minimum wage  from €9.55 to €9.80 which was accepted in principal by the government. This increase, which is the 3^rd Increase since the minimum wage was implemented will come into effect on 1^st Jan 2019.

August

In recent years technological advances have led to a changing environment where remote working is becoming both increasingly accessible and popular. While requests for flexible working arrangements are becoming more common, the balance between ‘flexible working’ and  available for work  ‘24 x 7’was highlighted in a decision by the labour court to award a business executive €7,500  over repeated breaches of the Organisation of Working Time Act.

Described by law experts as “ground-breaking”, in this case (Kepak Convenience Foods Unlimited Company v Grainne O’Hara [2018]), the court found that Ms O Hara was being required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week. A key feature of this case was the failure of the employer to produced documented evidence to dispute the claim. With this in mind employers are reminded to ensure that accurate records of working hours are being maintained

September

Inherent bias in recruitment and selection can have a detrimental impact on a company’s brand, finances, culture and ability to hire and retain the best staff. There was extensive news coverage this month of  a recent job advert published on a  public recruitment website by a Dublin Based oil firm which stated ‘Persons with young children need not apply’. While  this advertisement is blatantly discriminate and fortunately rare, employers are reminded of the important of addressing bias in their selection process. Employers are urged to ensure that ‘equal opportunities’ policies in place within companies are implemented in all aspects of the organisation, including employees recruitment and selection process

October

Revenue announce that The Pay As You Earn ( or Paye) system first introduced in 1960 will be moving to ‘real time’ in an effort to ‘proactively assist taxpayers in their revenue obligations’.  This represents a fundamental change for employers to the way current process employee tax payments and comes into effect on 1^st Jan 2019. Employers and payroll administrators  are advised to become aware of these changes to ensure legal tax compliance and are holding a number of information seminars. Details of these seminars can be found on the Revenue website.

November

The focus on mental health in the workplace dominated much of the headlines this month with the publication of a report  from the Economic and Social Research Institute (ESRI) research, funded by the Health and Safety Authority (HSA), that has  found job stress among employees doubled from 8% in 2010 to 17% in 2015. Employees from the health sector were found to have the highest levels of stress ( 18%) followed closely by public administration (16%) and manufacturing (14%). The Occupational  groups most likely to experience stress were technical/associate professional( 20%) , professionals (16%) and managers (14%).

Several International studies have  shown that job stress is linked to poor physical and mental health and to negative impacts for firms through absenteeism, increased job turnover and reduced morale. This report follows the recent decision by the High Courts to award the  plaintiff, Ms Hurley in Hurley Vs An Post [2018] €161,133 (including €50 K for pain and suffering) for her employers failure to address ongoing bullying and harassment in a meaningful way. This is an  important reminder for all employers in regard to the duty of care owed to employees. Employers can be held liable for an employee’s bullying of a colleague which can result in mental health problems in accordance with section 8 of the Health and Safety at work Act 2005. Employers are therefore reminded of the importance to have appropriate policies and procedures in effect to deal with these types of issues  and ensure that training is provided.

December

The Employment (Miscellaneous provisions) Bill 2017 passed by Dáil Eireann in July this year made significant process  this month having completed its final stage in Seanad. This Bill forms part of the Government’s proposals to tackle zero hour contracts and uncertain working conditions. This bill described as “one of the most significant changes to working conditions in a generation” by Regina Doherty, Minister for  Employment Affairs and Social Protection will have significant impact for employers in sectors such as retail, hospitality and tourism where the use of flexible working arrangements is widespread.

Aspects of the bill include  the requirement for employers to provide new hires with a written statement of core terms of employment within five days of starting employment and makes it a criminal offence for employers to incorrectly designate employees as ‘self-employed’.  The bill will also prohibit zero hour contracts “except in situations of genuine casual employment” or when they are used to provide cover “in emergency situations or to cover short-term absence”. Pending final review by the Dáil, it is anticipated that this Bill will become law in March 2019 and employers are urged to review existing arrangements for employees ensuring correct employment status and avoidance of potential criminal conviction.

So as you can see there are a number of changes taking effect from January 1^st 2019. For further information on any employment law matters, contact us at info@voltedge.ie or call Ingrid on 01-525 2914.

Jacqui Sykes, HR Consultant 

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: My team work really well together but recently I have had two complaints about one member who is not pulling their weight. I don’t feel it is a major issue.

A: As a manager you have a duty of care to all your reports, and if there is a perception about an employee not being productive in the team, then this needs to be dealt with. We suggest that you meet the individuals who have complained, understand the context, and then deal with the issue either as a genuine complaint to be followed up with the individual or explain the context and that the individual is not effective due to other issues (possibly outside of the individual’s scope).

Q: I have had a complaint of harassment made by a junior staff member about one of my managers – I don’t think it is justified and was hoping it might ‘die down’.

A: You have a responsibility to the employee but also to the manager if they are being accused of inappropriate behaviour. You should review your policies and procedures and firstly approach this as an informal issue. In the first instance you need to decide whether there is a genuine issue here – if the employee perceives that there is an issue you must follow up on it.

Hopefully you can resolve it by talking to the employee who made the complaint and resolving it either by getting the two people to talk, or by facilitating a discussion. If not, you may need to move to a formal process.

Q: An employee has complained that they are not getting enough breaks and that their eyesight is affected by sitting at a computer screen all day. We do enforce breaks and expect employees to manage their time so I don’t see this as an issue.

A: As an employer, you are required, under the Safety and Health regulations, to provide sufficient breaks (outlined in the Working Time Acts) and to also ensure that equipment is suitable and not causing any health issues. We suggest that you check that this employee is taking breaks regularly, and also offer them the opportunity to go for an eye test (which can be covered as a benefit when employees are paying PRSI). Here is a checklist to work from:

• Carry out an analysis or risk assessment of employee workstations
• Provide information to employees in relation to measures which have been implemented
• Provide training to employees in the use of workstations before commencing work with display screen equipment and whenever the organisation of the workstation is modified
• Perform a further analysis or risk assessment where an employee transfers to a new workstation or significant new work equipment, change of equipment or new technology is introduced
• Ensure that the provision of an appropriate eye and eyesight test is made available to every relevant employee

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.

Voltedge Management

Hays Ireland recently published a report which said that 46% of employees who left a role within 12 months did so because the role did not meet their expectations.

The Hays survey of 1,800 workers showed that many specified that the job descriptions were misleading, the application process was poor; at interview stage they were not interviewed by their line manager, their interviewer was not prepared for the interview, the process and communication through the process was poor and then once on-board the promised training was not provided.  Another survey by Robert Walters found similar results in that 70% of workers believe they were misled at induction stage about the company culture.

Hays has said that 74% of employers plan to recruit in 2018, and of those 68% intend recruiting for permanent positions.  Given the considerable amount of effort it takes to find good candidates in the current market, the cost in terms of time and budget, why are companies not being smarter about their recruitment and on-boarding process?  This is a ‘lose-lose’ situation for both the employer and the employee.  Why not look for the person who is both a good match for and who also wants the role?  In the Robert Walters survey 61% of respondents said once ‘on-board’ they found that their responsibilities did not match the job description.

Focus on clear and simple job descriptions

Employers need to focus on writing clear and simple job descriptions, prioritising the tasks expected of the candidate on a daily basis.  If an employer is seeking a Data Entry Administrator, then state this clearly and explain that this is 90% of what the person’s time will be spent on. By making the role appear different or more complex they are potentially putting off a candidate who is genuinely seeking a Data Entry Administrator position and instead are hiring people who will be disappointed.

Examine the interview process

Next, employers need to examine the interview process.  First impressions count for the candidate as well as the employer. 64% of respondents to the Hays Ireland survey stated that they got a poor impression of an organisation at early interview stage because the organisation seemed unwelcoming.  Company culture is playing an increasing role in candidates’ decision making about joining an organisation.  So, what impression does your organisation give to visitors amongst whom are potential employees?

Some of these statistics do not come as a surprise to me personally, as someone who recently changed job and spent a number of months becoming a little wiser to the recruitment process.  I have first-hand experience of some of these issues.  I am pleased to say that since joining Voltedge Management I have observed how our HR Consultants guide and advise our clients in this regard so that they can avoid the pitfalls.

Roslyn Keogh, Project Manager

Social Recruitment modelling and Employer Branding

We manage recruitment projects for clients who are ramping for growth, helping them to define their company brand and promote themselves in the marketplace so that the targeted talent is attracted to the message and the opportunity with our clients.

This includes all aspects of the recruitment process, such as job descriptions, benchmarking data on compensation and benefits, helping you make decisions on competitive packages for the various roles and business structures, advertising opportunities through social media and the company’s own network, screening and shortlisting for the hiring manager, scheduling interviews and doing all of the follow up with candidates.

We can also manage the relationships with recruitment companies and other stakeholders as well as providing interview training and guidelines, work permit and visa applications, pre-employment screening, background education, professional and employment references etc.

Here is a list of some of the current roles we are working on for our clients.

Blue Insurance

Customer Service Executive

Dun Laoghaire Dental

Practice Manager – Dental Surgery

The Relocation Bureau

Relocation Coordinator

Voltedge Management

HR Consultant

Senior HR Business Consultant

Other

Property Administrator

Sales Account Manager

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: As this period of hot weather continues, what are my responsibilities as an employer?

A: The Safety, Health and Welfare at Work Act 2005 does not set out a maximum temperature for the workplace, only a minimum. However, there is an onus on employers to ensure the safety of their staff so it is important to provide a reasonable temperature in the workplace and exercise a common sense approach.

Q: What steps can I take to ensure the health and safety of my staff?

A: Think about shade and those employees who work directly beside windows. Rearranging furniture away from direct sunlight through windows can help. Glass does not protect against all of the suns rays. Think about additional fans in areas with no airflow and most importantly, encourage employees to stay hydrated! Drinking plenty of water throughout the working day is vital. Encourage water breaks and allow for employees to get fresh air, stop overheating.

Q:  How can I keep staff motivated during periods of very hot weather?

A: As heat rises, so can absenteeism, commutes to work and a long day in a hot office can have an effect on employee motivation.  Think about relaxing the dress code, no ties, restrictive clothing, suit jackets or blazers. Turn off unnecessary lights, if the sun is streaming in, remember lights generate additional heat so turn some off. Be very mindful of those that work outside, ensuring both protection against the sun and also appropriate rest breaks for physical activity levels.

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.

Voltedge Management

Dismissal of employee who over-dosed on prescription drugs deemed unfair

A recent case, reported in IRN, where a general operative was sent home from work and subsequently dismissed, has been ruled by the Adjudication Officer (AO) of the Workplace Relations Commission to be unfair – due to lack of transparency and failure to follow a fair investigation and a lack of procedure before dismissal.

This employee arrived at work in an unsafe condition, and he didn’t tell his manager that he had taken his drugs over shorter periods than prescribed. Because of this, he was unfit for work. The employee had an injury and was taking prescribed medication for this injury. A decision to send the employee home was only taken after 2 hours in work, after returning from 18 weeks of sick leave.

The General Manager instigated a disciplinary investigation; however, no notes were provided to the employee and his union representative for the meetings held with witnesses, and some of the employee’s evidence was disregarded. Also, other incidents were included in the General Manager’s statement. The union representative was ‘in effect’ disregarded in the process, and the AO stated that the employee is entitled to a reasonable level of representation (citing the Lyons v Longford Westmeath ETB ruling).

The AO ruled that it was not good enough to just hold a disciplinary hearing and a subsequent appeal – and the employee was awarded half of his actual losses of €28,675.

This case again re-emphasises the necessity to follow best practice when undertaking a disciplinary investigation and to ensure transparency and fairness at all times, with the view that the employee is innocent until proven guilty.

In a recent case an employee issued proceedings against his employer for an accident that occurred during the course of their job. The incident arose when the employee fell and injured his back, while taking a shortcut down a steep slope on his way back from doing a routine check of the reservoir manhole. There was an alternative route to reach the manhole with little or no incline, only 10 or 15 metres away, fact that was highlighted by the employer in their defence.

The employee in question had been with the organisation for some time and referenced other similar incidents of employees who had also slipped at the same area. However, there was no record of these having been reported to the company.

During the hearing there was no evidence found that suggested the company had required the employee to use the steep route, as well as a number of inconsistencies regarding medical examinations of the employee which brought the extent of his injuries into question.

The findings focused section s13 of the Safety Health and Welfare at Work Act 2005 and made reference to a similar case where the same legal principles could be applied i.e. the application of common sense principles as to what amounts to reasonable care. The conclusion was that the employee had simply failed to take reasonable care for his own safety.

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.

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: Am I legally required to provide a reference to an ex-employee?
A: No, there is no general requirement in law or legislation that you must provide a reference. If you do provide a reference, you have a duty of care to both the subject of the reference and to anyone that might rely on it.

Q: By when must you legally provide an employee with their written terms of employment?
A: The Terms of Employment (information) Acts 1994-2014 provide that an Employer is obliged to provide an Employee with a written statement of terms of Employment within the first two months of commencement of employment.

Q: What happens if changes are made to the particulars contained in the written statement?
A: An employer must notify an employee of any changes to the particulars within one month after the change takes effect. It should be noted that this does not entitle an employer to unilaterally change the terms in the statement, and of course any changes must be agreed with the individual.

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.

Voltedge Management

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: When should I report an accident at work to the HSA?

A: The HSA must be notified of all: 1) fatal work-related accidents 2) accidents causing injury that result in the person carrying out work being absent from work or being unable to carry out his/her normal duties, for more than three consecutive days 3) accidents caused as a result of work or work activity, which result in a person who is not at work (a member of the public), suffering a fatal injury or an injury that requires hospital treatment or the attention of a doctor.

Q: When I am calculating three consecutive days, do I consider the weekend?

A: Yes, weekends and other normal days off (such as holidays) are included when calculating the period of absence following an accident.

Q: What is the Health and Safety Authorities’ role in relation to bullying?

A: Bullying has been identified as a safety issue, which means that when an HSA inspector is carrying out a workplace inspection, he/she will examine a business’s safety statement to ensure that the issue of bullying is dealt with. The HSA may also investigate a bullying claim in the workplace.

Q: Do we have to have a trained first aider in the business?

A: Yes. Employers are required by law to designate occupational first-aiders at the workplace as are necessary. The number depends on the size of the business and the findings of a risk assessment. You can find out how many are required in your Business here.

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.

Kate Siberry, HR Executive, Voltedge Management

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.

With the summer (hopefully) and the May bank holiday approaching soon, here are some questions and answers to consider:

Q: Can an employee request a two-week unbroken leave period?

A: Yes, provided they have worked for at least 8 months they are entitled to an unbroken period of 2 weeks’ annual leave.

Q:  What happens if an employee is sick on a public holiday?

A: If you are a fulltime worker who is on certified sick leave during a public holiday, you are entitled to benefit for the public holiday you missed. If you are a part-time worker on certified sick leave during a public holiday, you would be entitled to time off work for the public holiday provided you worked for your employer at least 40 hours in the previous 5-week period.

However, you are not entitled to the public holiday if you are absent from work immediately before the public holiday and you have been off work for more than 26 weeks due to an ordinary illness or accident, or for more than 52 weeks due to an occupational accident.

Q: If an employee comes back from their annual leave and produces a sick cert from their doctor what do I do?

A: If an employee becomes ill during their annual leave and provides a medical cert for the days they were ill, these sick days will not be counted as annual leave days. You cannot require an employee to take annual leave for a certified period of illness.

Q: If an employee is off work on certified sick days, are they still accruing annual leave days?

A: An amendment to the Workplace Relations Act 2015 made changes to how statutory annual leave is managed when an employee is on certified sick leave. These changes took effect on 1 August 2015 and include:

• An employee’s annual statutory leave entitlement continues to build up during a period of certified sick leave.
• An employee, who due to illness cannot take annual leave during the relevant leave year or the normal carryover period of 6 months, is entitled to an extended carryover period of 15 months after the leave year to take their accrued annual leave.
• If an employee leaves their job they are entitled to payment in lieu for any annual leave that accrued and was untaken as a result of illness. This payment in lieu only applies if you leave your employment up to 15 months after the end of the leave year during which the statutory leave entitlement accrued.

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.

Kate Siberry, HR Executive, Voltedge Management