employment – best practice legal responsibilities of employers mary seale

Employment – Best Practice

Legal Responsibilities of Employers

Mary Seale

Overview

Employment relationship Employment status Employment rights Legislation Regulation Summary of the employer’s obligations Additional considerations for employers Further information

Employment RelationshipEmployment

Is a contract between two parties one being the employer the other being the employee.

Contract of Employment An agreement between two parties that creates legally

enforceable obligations i.e. legally binding on both parties The contract lays down the agreed terms and conditions of the

employment relationship Expressed and implied terms Terms of Employment (Information) Acts 1994 to 2001 - an

employer must provide an employee with a written statement of the terms and conditions governing his / her employment.

Employment Relationship

The employment relationship is governed by:Legislation (Enacted law)

EU law (Directives, Regulations, European Court of Justice)

Common law (Judgements of superior courts – High Court / Supreme Court)

The Constitution (1937)

Employment Contracts Custom and practice

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Employment Status

www.revenue.ie

Employment (contract of service) or self employment (contract for service) status?

Control test Integration test Enterprise (financial risk) test Multiple test

Code of Practice for Determining Employmet of Self-Employment Status of Individuals

Employment Rights

The rights of employees originate from three different sources:

1. Employment law

Constitution

EU Law

Statute

Common Law

2. Codes of Practice

3. Collective Bargaining Process

Employment Rights

Terms and Conditions Contract of employment

Employee Handbook (referenced throughout the contract)(a) Conditions of employment(b) Leave (c) Compensation and benefits (d) Environmental health and safety(e) Performance management(f) Company policies and procedures(g) Information technology

Employment Rights - OverviewThe right to: A written statement of terms and conditions Receive a written statement of pay A minimum wage (€ 8.65) A maximum working week of 48 hours Unpaid breaks during working hours Leave from work Equal treatment Equal pay for like work A safe place of work Receive a minimum amount of notice before dismissal and to

bring an unfair dismissal claim Join a trade union and seek redress for breach of employment

rights

Employment RightsStatutory leave entitlements:

Maternity leave Maternity Protection Acts 1994 – 2004 Adoptive leave Adoptive Leave Act 1995 - 2005 Parental leave Parental Leave Acts 1998 – 2006

March 2013: European Union Regulations. Entitlement rose from 14 to 18 weeks Force Majeure leave Parental Leave Acts 1998 - 2006 Carer’s leave Carer’s Leave Act 2001 Jury leave Juries Act 1976 Annual leave and Public Holidays

Organisation of Working Time Act 1997 Health and Safety leave

(Applies to pregnant / recently given birth / breastfeeding employees)Safety, Health and Welfare at Work (General Applications) Regulations 2007

Employment Rights

Statutory Leave

Employment rights protected while on leave Not considered a break in service Entitled to return to the same job or suitable alternative

employment Can’t be dismissed or made redundant

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Employment Rights

Non- Statutory Leave Sick leave Bereavement / Compassionate leave Paternity / marriage leave Career breaks

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Employment Rights

Ireland ranks lowest in the former EU 15 for the number of days leave entitlement with 29 days of combined annual and public holiday leave.

Sweden 42 days

Germany 40 days

Italy 39 days.

European Foundation for the Improvement of Living and

Working Conditions

EU 15

Average of 35.6 days of combined leave

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Employment Legislation

Adoptive Leave Acts, 1995 and 2005 Data Protection Acts, 1988 - 2003 Carer’s Leave Act, 2001 Competition Acts, 1991 – 1996 Contractual Obligations (Applicable Law) Act, 1981 Electronic Commerce Act, 2000 Employment Equality Acts, 1998 and 2004 Employment Permits Acts, 2003 and 2006 Equal Status Acts, 2000 and 2004 European Communities (Safeguarding of Employees’ Rights on

Transfer of Undertakings) Regulations, 1980 European Communities (Protection of Workers – Exposure to

Noise) Regulations, 1990 Fire Services Act, 1981 Freedom of Information Act, 1998


Industrial Relations Act, 1990 Industrial Relations (Amendment) Act, 2001 Industrial Relations (Miscellaneous Provisions) Act, 2004 Juries Act, 1976 Maternity Protection Acts, 1994 - 2004 Minimum Notice and Terms of Employment Act, 1973 - 2001 National Minimum Wage Act, 2000 Organisation of Working Time Act, 1997 Organisation of Working Time (Records) (Prescribed Form and

Exemptions) Regulations, 2001 Parental Leave Acts, 1998 - 2006 Payment of Wages Act, 1991 Pensions (Amendment) Act, 2002 (PRSAs) Protection of Employment Act, 1977


Protection of Employees (Fixed–Term Work) Act, 2003 Protection of Employees (Part-Time Work) Act, 2001 Protection of Young Persons (Employment) Act, 1996 Public Health (Tobacco) Amendment Act, 2004 Redundancy Payments Act, 1967 - 2003 Safety in Industry Acts, 1955 – 1980 Safety, Health and Welfare at Work Act, 1989 and 2005 Terms of Employment (Information) Act, 1994 – 2001 Tobacco Smoking (Prohibition) Regulations, 2003 Trade Union Acts, 1913 - 1976 Transnational Information and Consultation of Employees Act, 1996 Unfair Dismissals Acts, 1977- 2001 Worker Participation (State Enterprises) Acts, 1977 and 1988 - 2001


Employment Equality Acts 1998 – 2004

Outlaws discrimination in employment, access to employment or conditions of employment, on any of the 9 grounds:1. Gender2. Race3. Marital status4. Family status5. Sexual orientation6. Religion7. Age8. Disability9. Membership of the Traveller community

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Equal Status Act 2000

Gives protection against discrimination in non-workplace environments

Compliments the Employment Equality Acts Covers education, the provision of goods, services and

accommodation and disposal of property Legislates for the prevention of harassment or sexual

harassment outside of the workplace

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Bullying / Harassment Significant issue in the workplace No statutory definition

…..repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment (vicarious liability), which would reasonable be regarded as undermining the individual’s right to dignity at work. An isolated incident in this definition may be an affront to dignity at work but is not considered to be bullying.

HSA Code of Practice

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Bullying / Harassment

Dealt with under Safety, Health and Welfare at Work Act, 2005

Code of Practice, 2007 – Health and Safety Authority Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying (admissible in evidence in the event of criminal proceedings)

Safety Statement – Hazard in the work place => Bullying Prevention Policy and Procedures

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Maternity Protection Acts 1994 - 2004

Maternity leave entitlement: 26 weeks maternity leave (March 2007)

Social welfare maternity benefit 16 weeks additional unpaid leave No obligation on employer to make any payment Commences - 2 weeks before expected week of confinement Employee must give 4 weeks notice to employer

(maternity leave / additional maternity leave / return to work)

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Employment LegislationMinimum Notice and Terms of Employment Act 1973

Employee must have 13 weeks continuous service

13 weeks – 2 years 1 week 2 – 5 years 2 weeks 5 – 10 years 4 weeks 10 – 15 years 6 weeks > 15 years 8 weeks

An employee is obliged to give 1 weeks notice

Notice of termination is probably one of the most important provisions in a Contract of Employment

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Organisation of Working Time Act, 1997

Minimum health and safety requirements around the organisation of working time

48 hours per week – averaged over 4 month period Annual leave – min. 20 days or 8% of hours worked Public holidays – (40 hours in previous 5 weeks) Breaks: 15 mins after 4.5 hours / 30 mins after 6 hours Records must be kept for 3 years

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9 Public holidays: New Years Day St. Patricks Day Easter Monday 1st Monday - May 1st Monday – June 1st Monday – August Last Monday – October Christmas Day St. Stephen’s Day

Public Holidays Bill 2013 – 10th Public Holiday ???(Commemoration of the 1916 Rising – 26th April)

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If a Public Holiday falls on a day on which an employee works they are

entitled to:

Paid day off - within 1 month Extra day’s pay Extra day’s annual leave

If it falls on a day on which the person does not normally work – entitlement is to 1/5 of normal weekly wage for that day

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Parental Leave Acts 1998 – 2006

Unpaid leave – child up to 8 years (16yrs disabled children)

Employee – 1 years continuous service to avail of it 18 weeks per child – continuous block / separate blocks

EU Directive March 2013 – increased from 14 to 18 weeks

Parents can only transfer the leave if they work for the same employer

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Parental Leave Acts 1998 – 2006Force Majeure Leave

Leave with pay for urgent family reasons, owing to an injury or illness of a person where the immediate presence of the employee is indispensable: Employee’s child Co-habiting spouse or partner Brother, sister, parent , grand-parent Person to whom the employee is in ‘loco parentis’ Person who resides with the employee in a relationship of domestic dependency

Entitlement: 3 days in any period of 12 consecutive months or 5 days in 36 consecutive months (Urgent / immediate / indispensable)

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Protection of Employees (Part-Time Work) Act 2001

Part-time employee can’t be treated less favourably than a 'comparable’ full time employee

Entitlements should be in proportion to those of a full-time employee – ‘pro rata’

Complaints to Rights Commissioner within 6 months

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Protection of Employees (Fixed–Term Work) Act 2003

Fixed term contract – ends on an agreed date Specified purpose contract end on completion of a particular

project Employee can’t be treated less favourably (‘comparable’

permanent employee) Requires a clause in the employment contract re Unfair

Dismissals (next slide) 2 or more continuous fixed term contracts – duration may not

exceed 4 years

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Protection of Employees (Fixed –Term Work) Act 2003

‘Provisions of the Unfair Dismissals Acts 1997 – 2007 will not apply to termination of this contract due only to expiration of the fixed term / completion of the specific purpose’

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Redundancy Payments Acts 1967 – 2007

Entitlement requires continuous employment for 104 weeks 2 weeks for every year of service + a week Ceiling of €600 per week (statutory) - € 31,200 per year Statutory payment – tax free Employer was entitled to 60% rebate from the state – no

statutory redundancy employer rebate since January 2013(Department of Jobs, Enterprise and Innovation)

Position is made redundant – not the person

(Impersonality and Change)

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Safety, Health and Welfare at Work Act 2005

Duties of Employers Ensure a safe place of work Safety Statement and Risk assessment – prevention / elimination /

minimisation

Emergency plans and procedures Provide training as required

Duties of Employees Comply with statutory provisions Co-operate with the employer to ensure safe workplace Duty not to engage in any improper conduct or behaviour

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Terms of Employment Information Act, 1994 - 2001

Employees entitled to a written statement of terms and conditions of employment within two months

Employer must notify the employee of any changes Right of complaint to a Rights Commissioner

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Unfair Dismissals Acts 1997 – 2007

Prior to the passing of this Act, employees had virtually no protection against arbitrary dismissal (wrongful dismissal through courts).

The Act provides protection by setting out criteria by which dismissals are deemed to be fair or unfair and provides redress for an employee whose dismissal is found to be unfair

(re-instatement /re-engagement / compensation – max of 104 weeks remuneration)

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A dismissal is automatically deemed unfair – burden of proof falls to the employer

Employee must have 12 months continuous service (exceptions)

Complaint lodged to Rights Commissioner within 6 months Successful claim – re-instatement; re-engagement;

compensation (up to 2 years pay)

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Fair reasons for dismissal:1. Capability, competence, qualifications of employee2. Conduct of the employee3. Redundancy4. Unable to continue to work without contravening a duty

imposed by statute (e.g. work permit)

Fundamentals of Procedural Fairness Audi alteram partem (both side must be heard)

Nemo iudex in sua causa (can’t be the judge in your own case / anti-bias)

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Constructive DismissalAn employee terminates the contract of employment due to the behaviour of the employer

Burden of proof shifts to employee Exhausted internal grievance procedures? Concerns brought to the employer? Employer given an opportunity to address the issue(s)? Conduct complained of – did it warrant resignation?

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Regulation

National Employment Rights Authority (NERA)Social Partnership Agreement ‘Towards 2016’ Statutory footing Aims to foster a culture of compliance with employment rights legislation:

Information on rights; Inspection (90 inspectors);EnforcementProsecutionProtection of Young Persons

Works closely with Revenue and the Department of Social protection (JIUs)

Minister for Jobs, Enterprise and InnovationTo announce legislative provision for a new work place relations service in 2013Single point of contact

Employer’s Obligations Summary – NERA

Ensure:1.Written statement of terms and conditions of employment2.Written statement of pay or payslip3.Minimum wage (€8.56)4.Maximum working week5.Unpaid breaks are provided during working hours6.Annual leave from work7.Minimum notice before termination of work8.Maintenance of records – employees and entitlements

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Employer’s Obligations - Summary

To: Create a safe environmentHave an ‘up to date’ working knowledge of employment practice and the relevant legislationEvaluate the implications for the organisationDevelop policies and procedures - communicate acceptable / unacceptable behaviour and promote best practiceActively support / enable their implementationRespond to concerns and deal with any issues raisedExhaust internal grievance / disciplinary procedures

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Additional Considerations

Children First – statutory footing Records and data protection Confidentiality Performance management system / staff support and

supervision Range of organisational policies and procedures to

ensure best practice Child and Family Agency

Further Information

Department of Jobs, Enterprise and Innovation www.djei.ie

National Employment Rights Authority (NERA) www.employmentrights.ie

Citizens Information www.citizensinformation.ie

Health and Safety Authority www.hsa.ie

Mary Seale

employment – best practice legal responsibilities of employers mary seale

Documents

terms of employment

employment rights terms

employment rights ireland

employment equality

employment permits acts

employment contract

safety leave

self employment contract