Hr obligations on employers in ireland

““HR Obligations on Employers”HR Obligations on Employers”

Presented by David Bell, SolicitorPresented by David Bell, Solicitor

The HR Department, 126 Ranelagh, Dublin 6. (t) 01-6852360 (m) 087 8527723

[email protected] www.thehrdepartment.ie

mailto:[email protected]

Agenda

• Employment Litigation – A REAL threat?

• The Facts

• A Selection of Employer Obligations

• What can I say to my clients?

• Summary

Employment Litigation - a Real Threat?

• There are some 35 pieces of legislation covering the Employer/Employee relationship.

• Legislation covers all aspects of the relationship from recruitment to the rights of employees whilst in employment to the termination of employment.

• The primary legislation that employers should be concerned about are:• Unfair Dismissals Acts, 1977-1993• Equality Act, 1998• Organisation of Working Time Act 1997• Terms of Employment (Information Act) 1994


• Maternity Protection Act, 1994

• Adoptive Leave Act, 1995

• Parental Leave Act, 1998

• Protection of Employees (Fixed Term Work) Act, 2003

• Safety Health and Welfare at Work Act, 2005

• Data Protection Act, 1998


• A more litigious society;

• Equality Act, 1998 in particular has resulted in an increase in the options available to disgruntled employees;

• The Act applies to all employees not just those in continuous employment for 12 months as is the case under the Unfair Dismissals legislation.

The Facts

• In 2003, the Labour Inspectorate made a total of In 2003, the Labour Inspectorate made a total of 7,168 inspections of companies in Ireland. I7,168 inspections of companies in Ireland. In 2007 there were over 14,000 inspections

• Inspectors have the power to impose immediate Inspectors have the power to impose immediate penalties of €1,900 and €650 for each day non-penalties of €1,900 and €650 for each day non-compliance continues. (source: Dept of Enterprise compliance continues. (source: Dept of Enterprise Trade & Employment).Trade & Employment).

• Under Employment Equality Legislation the Under Employment Equality Legislation the average compensation award made to an average compensation award made to an individual was €13,182 (source: The Equality individual was €13,182 (source: The Equality Authority)Authority)

The Facts

• In 2005 The Employment Rights Information Unit handled over 150,000 queries (by phone, e-mail or in person) from employers and employees enquiring about the operational features of Employment Rights Legislation (source: Dept of Enterprise Trade & Employment)

• National Employment Rights Authority (NERA) National Employment Rights Authority (NERA) launched in 2008. launched in 2008.

• It reported that in 2007 with over 14,000 inspections and as a result of advice and guidance given over €2,000,000 was paid back to employees by employers.

A Selection of Employer Obligations

• Under the Terms of Employment (Information) Act, 1994 all employees must be provided with a contract of employment.

Potential Penalty = 4 weeks salary to the employee.

• All employees must be furnished with a written copy of the Disciplinary Procedure within 2 months of employment.

Dismissals deemed unfair unless proven otherwise.Companies not following fair procedure –employees can be

awarded up to 104 weeks of salary


Under the Equality Act, 1998, no employer must discriminate against or harass any employee or

potential employee on any of the nine grounds of discrimination namely,

• Gender-A man, a woman or a transsexual person• Marital status-Single, married, separated, divorced or widower• Family status-Pregnant, parent of child under 18 or person with

disability• Sexual orientation-Gay, lesbian, bisexual or heterosexual• Religious belief-Different religious belief, background, outlook or

none• Age• Disability-including people with physical, intellectual, learning or

emotional disabilities and a range of medical conditions• Race-A particular race, skin colour, nationality or ethnic origin• Membership of the Traveller community

Case: A Worker v A Solicitor


• Employers should treat Employers should treat allall employees equally employees equally.

• The Equality Act, 1998 also outlaws harassment in relation to any of the nine discriminatory

grounds in the workplace and in the course of employment whether by an employer, another

employee or by clients or customers and an employer may be found liable for those acts if they cant prove they took reasonable steps to

prevent the conduct and protect their employees.

Case: Ntoko v Citibank


• Under the Organisation of Working Time Act 1997 All staff are entitled to a 15 minute break after 4.5 hours worked.

• Another obligation under this Act is that employers must keep a record of an employees holidays and public holidays and in some cases rest breaks for a period of three years.

Potential Fine for failure to comply with Act:€1,900+€630 per day for continuing offence


Sick Leave

• Although generally there is no statutory requirement to pay sick leave most employers operate a sick leave scheme. If you pay sick leave or not the policy should be contained in either the contract of employment or company handbook.

Case: Mullarky v Irish National Stud


Data Protection

• All employees are entitled to a copy, clearly explained, of any information relating to them, kept on computer or in a structured manual filing system by their employer;

• Are references included in this definition?The Data Protection Commissioner has expressed the view that employees are entitled to references even if it has confidential written on it.


Statutory Leave

All employees are entitled to • Maternity Leave-since 1 March 2007-26 weeks

+ option of 16 weeks unpaid leave• Parental Leave- 14 weeks unpaid leave per child

up to the age of 8• Adoptive Leave- since 1 March 2007-24 weeks

after adoption+ option of additional 16 unpaid leave

• Carers Leave-104 Weeks• Force Majeure leave-3 days per year


Fixed Term WorkersFixed Term Workers

Where an employees first fixed term Where an employees first fixed term contract commences after the 14contract commences after the 14thth of July of July 2003 there can only be one further fixed 2003 there can only be one further fixed term contract and the aggregate term contract and the aggregate duration of the two contracts cannot duration of the two contracts cannot exceed 4 years unless there are exceed 4 years unless there are objective grounds justifying a renewalobjective grounds justifying a renewal


Transfer of UndertakingsTransfer of Undertakings

Apart from the transfer of shares the following Apart from the transfer of shares the following may also be deemed to be a business transfer may also be deemed to be a business transfer that could involve an obligation on the that could involve an obligation on the purchaser to take on the employees:purchaser to take on the employees:

Sale of GoodwillSale of GoodwillSurrender of a lease-implications for a landlord;Surrender of a lease-implications for a landlord;Surrender of a franchise.Surrender of a franchise.

Each circumstance should be looked at before Each circumstance should be looked at before advising a client as to their obligations.advising a client as to their obligations.

What can I say to my clients?

• Common Statements from clientsCommon Statements from clients

““ I have survived this long without contracts-why I have survived this long without contracts-why do I need them now?”do I need them now?”

“ “ I have never had any problems with staff-why do I have never had any problems with staff-why do I need a handbook”I need a handbook”

““ We have an informal relationship-I don’t want to We have an informal relationship-I don’t want to formalise it”formalise it”

““ I only have three employees-I don’t need a I only have three employees-I don’t need a handbook!”handbook!”

What can I say to my clients?

1.1. It is the Law!-substantial fines and awards can be made It is the Law!-substantial fines and awards can be made against you!against you!

2.2. If you don’t have a Grievance or Disciplinary or anti If you don’t have a Grievance or Disciplinary or anti bullying policy in place you will almost certainly lose any bullying policy in place you will almost certainly lose any case against you.case against you.

3.3. Employees expect at least a contract of employment and Employees expect at least a contract of employment and know their rights and their employers obligations.know their rights and their employers obligations.

4.4. A huge amount of management time is spent on dealing A huge amount of management time is spent on dealing with queries and a contract and handbook is a one stop with queries and a contract and handbook is a one stop reference for all rights and policiesreference for all rights and policies

5.5. Increasing awardsIncreasing awards

SummarySummary

• Recent legislation in Ireland has increased the obligations and responsibilities on all employers.

• Employees’ increased awareness of their rights, and the increase in the compensation awards have all contributed to the likelihood of an employer becoming involved in some type of litigation.

• Legislation covers all aspects of the employer –employee relationship and covers, in the majority of cases all employees.

• All employers should be aware of their statutory obligations and ensure that they are complying with those obligations by putting in place policies and procedures

The HR Department, 126, Ranelagh Dublin 2. (t) 01-6852360(m) 087 8527723 [email protected] www.thehrdepartment.ie

Education

Hr obligations on employers in ireland