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National Meeting Hodson Bay Hotel, Athlone, Tuesday 9th June 2009 2:30-5:00p.m. “ Employment Law ” Delivered by: Elaine Rossiter, HR Consultant.

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Employment law delivered by elaine rossiter hr consultant

National Meeting

Hodson Bay Hotel, Athlone,

Tuesday 9th June 2009

2:30-5:00p.m.

“Employment Law”

Delivered by: Elaine Rossiter, HR Consultant


Employment law delivered by elaine rossiter hr consultant

This session will look at some of the practical employment issues that managers of FRC need toconsider in the ever changing economic environment.

  • Key session topics include:

    • o Overview of Employment Law

    • o Contracts of Employment

    • o Termination of Contract

    • o Fair and Unfair Dismissals

    • o Grievance and Disciplinary Procedures


Employment law overview

Employment Law Overview

Sources of Irish Employment Law

Contracts of employment

Fixed Contract Employees

Forms of Statutory Leave

Hours of Work/Working Time Act

New Staff and the UD Act

Redundancy Guidelines

Overview of minimum policies required by statute


Sources of irish employment law

Employment Contract

Staff Handbook, Policies, Procedures

Irish Constitution 1937

Irish & EU Legislation

Irish and EU case law

Collective Agreements

Registered Employment Agreement

Social Partnership Agreements

Custom and Practice

International law

Sources of Irish Employment Law


Employment contracts staff handbooks

Employment Contracts & Staff Handbooks

  • Verbal

  • Written

  • Express Terms

  • Implied Terms

    • By the Constitution

    • By legalisation

    • By custom and practice

    • By the courts


Irish law and eu legislation codes of practice

Code of Practice on Harassment & Sexual Harassment, Equality Authority. www.equality.ie

Code of Practice on the Preventing of Workplace Bullying. Health & Safety Authority. www.hsa.ie

Code of Practice Detailing Procedures for Addressing Bullying in the workplace. www.lrc.ie

Code of Practice on Access to Part Time Working 2006. www.lrc.ie

Irish Law and EU Legislation -Codes of Practice


Contracts of employment

Contracts of Employment

No legal requirement to provide contract of employment

Terms of Employment (Information) Act, 1994

Provide main terms and conditions of employment

In writing and signed by employer

Within 30 days of start

Not a contract but a statement

Contracts of employment are:

More detailed and signed by both parties

Contain legally enforceable clauses

Which is better depends on circumstances


Contracts of employment1

Contracts of Employment

Normally any Court / Hearing will ask these three key questions:

What does the person’s contract say?

What does the law say?

What is happening in reality?

The critical question is the third one as this forms “custom and practice”


Contracts of employment2

Contracts of Employment

Two principle forms of contracts

Contract of

Employment

IN

Contract for

Services

OUT


Contracts of employment3

Contracts of Employment

Contract of Services

Under this form of contract a person is engaged directly as an employee of the organisation.

Contract for Services

Under this contract the work is ‘Contracted Out’ to a service provider

(e.g. Agency Workers, Cleaning Services)


Contracts of employment4

Contracts of Employment


Contracts of employment5

Contracts of Employment

Types of Employment Contracts

Permanent Contract – ‘‘Permanent Employee” means an employee who is not a fixed-term employee.

Fixed Contract

Temporary Contract – Short-term need

Fixed Term Contract – Project / Task focus

Specific Purpose Contract – Specific need or task.


Contracts of employment6

Contracts of Employment

Protection of Employees (Fixed Term Work) Act, 2003

Provides improved rights to staff on Fixed Term contracts

Same terms and conditions

Permanent after 4 years

Organisations need to consider why they use contract staff

Short term need within existing role

Skill set not available in organisation

Project that is time bound

No longer headcount avoidance


Contracts of employment7

Contracts of Employment

Cannot use FT Contracts to avoid making staff permanent

Same terms and conditions - unless objective reason

Cannot continuously roll over on successive contracts

After 3 years of successive F-T contracts

Only 1 more, no more than12 months

Must justify reason for not making permanent

Must justify reason for non-renewal

Staff can be deemed to be on contract of indefinite duration

Can still provide 5 year FT contract

Must be only 1 contract


Contracts of employment8

Contracts of Employment

Part-Time/Agency Contracts…

  • Part-time workers - staff whose normal hours of work are less than the normal hours of work of ‘comparable full-time workers’

  • Agency workers are covered by employment legislation and the agency is considered the employer

    Employers should give consideration to requests for part-time worker


Contracts of employment9

Contracts of Employment

  • Recommended good practice:

    • Contracts in writing, signed prior to commencement

    • Terms stated clearly and precisely

    • Specific reference to other documents such as staff handbooks, collective agreements

    • Ensure employee has received all documentation and is bound by it.


Wages

Wages

  • Every employee is entitled to a confidential written statement of gross pay, deductions (e.g. PAYE and PRSI) and net pay

  • Employers are obliged to facilitate the employee paying into a PRSA

  • The Minimum Wage is €8.65 (since July 07)


Statutory leave

Statutory Leave

Annual Leave

Maternity Leave

Adoptive Leave

Parental Parental Leave

Force Majeure Leave

Carers Leave


Statutory leave1

Statutory Leave


Statutory leave2

Statutory Leave

Organisation of Working Time Act 1997

All employees who have worked 1,365 hours are entitled to a paid leave entitlement of 4 weeks

Other employees are entitled to 8% of hours worked subject to a maximum of 4 weeks

1/3 of week where employee has worked 117 hours

All employees have an entitlement to public holidays or one of the following:

A paid day off within the month

An additional annual leave day

An additional day’s pay

Other forms of non-statutory leave

There is no legislative right to paid sick leave

There is no legislative right to compassionate leave


Hours of work

Hours of Work

The maximum AVERAGE working week should not exceed 48 hours

This does not mean NEVER exceeding 48 hours in any week

Rest periods

Employees are entitled to

a 15-minute break in a 4.5-hour period or

break of 30 minutes in a 6-hour period

11 consecutive hours rest in a 24-hour period

24 hours consecutive rest in any period of 7 days

Essential to keep records

Onus on employer to prove compliance


Redundancy

Redundancy

New reality for many companies

Important to get it correct

50% increase in cases of Unfair Dismissal

Follow some simple guidelines

Main form is the RP50

Available from www.entemp.ie


Redundancy1

Redundancy

Important to remember the role is redundant and not the person

Company requires fewer employees

Work is to be carried out in a different manner

Must have 2 years service

2 weeks pay per year plus 1 week lump sum

Ceiling of €600 per week

Ex-gratia at company discretion


Redundancy2

Redundancy

Selection criteria are critical

Last in first out may be discriminatory

Consider a range of factors:

Service

Skills/Qualifications

Performance

Disciplinary/Attendance record

Customer feedback


New staff and ud act

New staff and UD Act

Unfair Dismissals Act, 1977 - 2001

Sets out legal framework

Statutory Instrument 146/2000

Code of Practice on Grievance and Disciplinary Procedures

Sets out how process is applied

Must have 1 year’s service

Notice counts as service!

Maternity, equality and union are covered from Day 1


New staff and ud act1

Notice begins after 13 weeks

Unless contract allows for greater period

Must take care to ensure payment of all notices and leaves

Unless case of gross misconduct

Should always treat staff as if they can be subject to UD Act

Little effort now prevents problem later

New staff and UD Act


New staff and ud act2

Rules of Natural Justice

The right to be fully informed of the allegations being made

The right to have his/her case heard

The right of reply

The right to question and to call witnesses

The right of innocence until proven guilty

The right to representation

The right of appeal

Courts will look at application of these irrespective of length of service

New staff and UD Act


New staff and ud act3

Section 29 Industrial Relations Act

Gives right for employee to have case heard

Can have less than 12 months service

Outcome is only binding on employee

Temptation is to ignore proceedings

Bad publicity for employer

Always should present case

Can avoid ruling if dismissal is with cause

New staff and UD Act


Employment law overview minimum policies

Employment Law Overview - Minimum Policies

Disciplinary

Grievance

Bullying & Harassment

Equal Opportunities

Data Protection

Maternity Leave

Parental Leave

Adoptive Leave

Carer’s Leave

Emergency Family Leave

Health & Safety


Overview of employment law

Overview of Employment Law

Main Learning Points:

Legislation is constantly changing

Problems will arise

Best practice procedures should be in place

People Managers must be trained in how to use the law/procedures

Taking shortcuts does not work in the long run


Termination of employment overview

Termination of Employment(overview)

  • A contract may specify the amount of notice that the employee is entitled to in the event of being let go

  • A minimum period of notice applies for employees with 13 weeks service or more…


Disciplinary guidelines

Disciplinary Guidelines


Employment law delivered by elaine rossiter hr consultant

Disciplinary Guidelines

Unfair Dismissals legislation

Procedural fairness

Conducting hearings

Taking notes


Discipline management

Discipline Management


What governs dismissal

What governs dismissal

Unfair Dismissals Act, 1977 - 2001

Sets out legal framework

Statutory Instrument 146/2000

Code of Practice on Grievance and Disciplinary Procedures

Sets out how process is applied


Unfair dismissals acts 1977 2001

Unfair Dismissals Acts, 1977 - 2001

Requirements:

1 years continuous service

Notice counts as service

Valid and enforceable contract

Refer case within 6 months

12 mths exceptional circumstances

Rights Commissioner/EAT


Unfair dismissals acts 1977 20011

Unfair Dismissals Acts, 1977 - 2001

Must be valid contract

Must be dismissed

Employer terminates the contract

Temporary contract not renewed

Depending on circumstances

Employee terminates the contract

Entitled to do so or it was reasonable for them to do so

Referred to as ‘constructive dismissal’


Constructive dismissal

Constructive Dismissal

The employer has a duty of care to look after the welfare of workers.

  • Where this duty is ignored – in the case of bullying and intimidation – then the employer may be liable to a legal action by the employee who has been “hurt”.

  • Leeson vs Glaxo Wellcome Limited refers to a case where a female employee felt bullied by her new boss and felt she had no option but to leave the employment. She was awarded £22,500 by the Employment Appeals Tribunal who found in her favour.


Fair reasons for dismissal

Fair Reasons for Dismissal

There must be substantial grounds to justify the dismissal

Capability

Competence

Qualifications

Conduct

Redundancy

Other substantial grounds


Unfair reasons for dismissal

Unfair Reasons for Dismissal

Pregnancy or related matters

Religious or political opinions

Race or colour

Sexual orientation

Age

Trade Union membership or activity

Taking part in a strike or other industrial action

Legal proceedings against employer

Member of travelling community

Exercising rights under certain legislation


Fair procedures

Fair Procedures

Employer may have a substantive case

Procedural fairness is also relevant:

In deciding fairness of sanction (if fair)

In assessing compensation (if unfair)


Unfair dismissals acts 1977 20012

Unfair Dismissals Acts, 1977 - 2001

Remedies

Reinstatement

ReinengagementOR

Compensation

Actual and future loss

Contribution

The 4 week basic award (where no loss exists)

Maximum 2 year’s salary

Wrongful Dismissal

Courts where remedies are higher


Principles of natural justice

Principles of Natural Justice

If an employer does not comply with fair procedures

the dismissal will be found to be unfair

despite grounds justifying the dismissal

Dismissal is always deemed unfair

Up to employer to prove otherwise


Principles of natural justice1

Principles of Natural Justice

Principles of Constitutional/ Natural Justice

Right to know full allegations and who is making them

Right of reply

Right to representation

Right to fair, impartial and objective consideration of evidence

Right to appeal

Common Law rules

Implicit in employee legislation


Implementing a procedure

Implementing a Procedure

Starting point of is the introduction of a procedure

Staff and managers should be aware and trained in use

Ensures disciplinary action is applied fairly and consistently

Give copy to employee

within 28 days of commencement of employment


The investigation

The Investigation

No action taken until employer has investigated issue

Nature of issue will determine extent of investigation

Nature/extent of investigation will be examined by Tribunal

Determine if fair/unfair


Taking disciplinary action

Taking Disciplinary Action

Issue notice of disciplinary hearing

Reiterate right of representation

Listen – do not interrupt

Ensure all evidence is presented

Never give the impression that a decision has been made

Adjourn to consider all information

Impartial objective consideration

Disciplinary must be proportionate

Keep notes of all meetings

Right of appeal


Gross misconduct

Gross Misconduct

Can dismiss summarily

Skip all stages of procedure

No notice period or payment

Only after investigation

Must be for serious breach of conduct or misbehaviour

Must be very careful if using gross misconduct


Conclusion

Conclusion

Substantial reason justifying disciplinary action

Adherence to procedures

Principles of natural justice

Internal disciplinary Procedure or Code of Practice

‘Reasonable’ employer

Last Resort

Punishment must fit the crime


Essential policies and procedure to comply with legislation

Essential Policies and Procedure to comply with Legislation

  • Equal Opportunity Policy

  • Review recruitment practices

  • Review interview procedures

  • Grievance policy

  • Policy and procedures on HARASSMENT

  • Anti-Bullying Policy

  • Performance reviews

  • Records (onus on proof on employer)


Resources

Resources

  • Web sites

  • National Employment Rights Authority (NERA)

  • IBEC

  • Equality Authority

  • Department of Enterprise Trade & Employment

  • Health & Safety Authority

  • Labour Relations Commission

  • Small Business enterprise


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