Sunday, 8th December 2019

Monthly Archives: December 2013

Christmas – Public Holiday Advice for Employers

With the Christmas Period upon us we thought you might find some information on Public Holidays and the relevant employer obligations/ responsibilities around pay useful.

Christmas, Public Holidays

There are nine Public Holidays in Ireland each year - they are:

•New Year's Day (1 January)

•St. Patrick's Day (17 March)

•Easter Monday (Changes every year)

•The first Monday in May, June & August

•The last Monday in October

•Christmas Day (25 December)

•St. Stephen's Day (26 December)

Here is a breakdown of the statutory outline of Public Holiday Entitlements under Irish Employment Legislation:

Did you know that employees scheduled to work on a Public Holiday are entitled to an additional day's pay for the day?

Public holidays, Bank Holiday Pay


For instance, let's take “Employee A” as an example –

“Employee A” works on the day the Public Holiday falls - let's say “Employee A” is a retail store employee and is required to work on St. Stephen's day as it is the first day of the store's seasonal sale.

*On a normal working day “Employee A” earns €100.

This means that “Employee A” is entitled to receive the usual €100 for the hours worked on the Public Holiday as well as an additional €100 - So “Employee A” receives €200 for working on the Public Holiday. If there is any ambiguity in ascertaining what an additional day's pay should equal the employer should look at the last day worked prior to the Public Holiday.

“Employee B” represents an employee who is normally scheduled to work on a day that a Public Holiday falls but is not required to work on that day (for example - an administrative assistant in a bank who typically works 09:00-17:00 Monday – Friday, who is not required to work on Easter Monday).

“Employee B” should receive their normal day's pay for that day as well as not being required to work on the Public Holiday. On a normal working day “Employee B” receives €100. When a Public Holiday falls “Employee B” will not be required to work on this day as the business is closed. “Employee B” will still receive their normal day’s pay.

Bank Holidays at Christmas

The one that can cause the most confusion is the case of “Employee C”

Employees who are not normally scheduled to work on the Public Holiday will receive one-fifth of their normal weekly pay for the day. “Employee C”, for instance, works Wednesday – Friday and receives €100 per day in remuneration. If a Public Holiday falls on a Tuesday, even though “Employee C” never works that day he or she still has the right to benefit from the Public Holiday in some way.

“Employee C” is still entitled to be paid a certain amount as a benefit for the Public Holiday (one-fifth of their normal weekly pay). If this employee earns €300 per three day week (Wednesday-Friday) they are entitled to earn an additional €60 during a week where a Public Holiday falls on a Monday or Tuesday.

The above rules will apply for all Public Holidays.

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Equality Officer Awards €40,000 in Gender Discrimination Case

Equality Officer Awards €40,000 to Anne Delaney in response to complaint made against the Irish Prison Service.

Discrimination, Compensation

Anne Delaney took a case against the Irish Prison Service because she was discriminated against by her employer on the grounds of gender in relation to promotion, training and conditions of employment.

In 2011, Ms. Delaney referred a complaint against her employer under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal. She alleged that the Irish Prison Service discriminated against her on grounds of gender when she applied for numerous posts over several years. Junior or less suitable/less experienced male candidates were appointed to the roles ahead of Ms. Delaney on all occasions.

 

Gender Discrimination, Equality Tribunal

 

After reviewing all of the submitted evidence, the Equality Officer was satisfied that the complainant, Ms. Delaney, had established a link between the incidents that she complained about. The Equality Officer considered the incidents as separate manifestations of the same disposition to discriminate. The Equality Officer criticised the lack of transparency stating that she was unsure of the fairness of the selection procedures that were followed. There were no marking schemes available for review and no records to help her to assess what grounds the hiring decisions were based on. It also became apparent that the same senior personnel were involved in the selection process for all posts.

Gender Discrimination, Compensation

The Equality Officer’s investigation of the complaint concluded that the Irish Prison Service discriminated against Ms. Delaney on gender grounds when she applied for a gym instructor course in 2001, when she applied for an Operational Support Group post in 2009, when she was asked to step down from the post of Acting ACO in August 2010 and again in September 2010 when she applied for an allowance carrying post in the Detail Office.

As a result of her findings the Equality Officer tasked with making the decision on the case ordered that Ms. Delaney be appointed to the position of Acting ACO, and placed on the permanent roster for that position. The Equality Officer backdated this appointment to the 5th of August 2010 and ensured that all consequential employment rights and entitlements, including remuneration and recognition of service, were upheld.

 

Gender Discrimination resized 600The Equality Officer found that Ms. Delaney had been subjected to discrimination on the grounds of her gender on numerous occasions during her career with the Irish Prison Service. The Equality Officer considered a compensatory award of €40,000 to be just and equitable in response to the distress suffered by Ms. Delaney as a result of the discrimination that she suffered. The Equality Officer felt as though €40,000 was a proportionate, effective and dissuasive sum to award. That component of the award was not in the form of remuneration and, consequently, was not subject to the PAYE/PRSI Code.

 

The Equality Officer found that the Irish Prison Service’s selection process for the allowance carrying post in the Detail Office (a post applied for by Ms. Delaney in September 2010) was deficient and non-compliant with Equality Legislation. The Equality Officer ordered that the Irish Prison Service ensure that a fair selection process be adopted in all future selections. She also ordered that the selection panel must be trained in the process and that it must set down the criteria in writing before embarking on the selection process. The Equality Officer also ordered that a marking scheme must be adopted and that the weighting should be given under each element. She also directed that notes must be retained for future reference.

DEC-E2013-155

DECISION NO: DEC-E/2013/155

Anne Delaney Vs Irish Prison Service

FILE NO: EE/2011/292

DATE OF ISSUE: 19th of November, 2013

 

Letu0026#39u003Bs Chat

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Risk Assessment for Pregnant Employees

As soon as an employer has received written notification of pregnancy from an employee, a risk assessment should be carried out.

The employee should give their employer a copy of any advice that their Doctor/Midwife has given them if it could have an impact on the pregnant employee’s risk assessment. The risk assessment’s purpose is to evaluate the employee’s ability to carry out their role and to identify any possible risks to mother and baby.

Pregnant Employees Risk Assessment

 

 

Examples of some risks are:

  • Standing/sitting for long periods

  • Lifting/carrying heavy loads

  • Threat of violence in the workplace

  • Long working hours

  • Excessively noisy workplaces

  • Exposure to toxic substances

  • Work-related stress

  • Workstations and posture

 

Set out below are the different stages of a pregnant employee risk assessment:


Step 1: Identify the risks (bearing in mind that there may not be any)


Step 2 - Determine what can be done to reduce/remove any of the risks identified in Step 1. This may mean modifying the working hours or conditions of the pregnant employee. This stage can also involve assigning the employee to an alternative role during pregnancy. It is important to remember that the employer is not allowed to alter the employee’s pay for the duration of this change in role.


Step 3 – If the identified risks are great and no possibility of removal/reduction can be found (this may not be practical within the workplace etc.), the employer may decide to suspend the employee from duties until the health and safety of the mother and unborn child/children is no longer threatened. This is known as Health & Safety Leave. Health and Safety Leave can also be applicable for breastfeeding mothers. During Health & Safety Leave (the period of suspension) the employee is entitled to full pay from the employer for the first three weeks. Exceptions can occur if the employee has unreasonably refused to do the alternative ‘risk-free’ work offered to them or if the employee does not meet any reasonable requirements. 

 Risk Assessment

The Department of Social Protection pays Health and Safety Benefit after the first three weeks of Health and Safety Leave has passed. In order to qualify for Health and Safety Benefit, you must meet certain criteria and PRSI contribution conditions. Employees are still considered to be in employment so they continue to accumulate their annual leave entitlement. However, they are not entitled to payment for public holidays that occur while on Health and Safety Leave.

 

 

It is essential that the employer regularly monitors and reviews any assessment made to take account of the possible risks that may occur at the different stages of pregnancy.


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Pension Obligations of Irish Employers

No matter how big or how small your company may be – or whether your employees are part-time, seasonal or fixed-term - every Irish employer is obliged to enter into a contract with a PRSA provider and to provide access to at least one standard PRSA for all ‘excluded employees’.

What are ‘excluded employees’?

Employees are considered to be ‘excluded employees’ if:

  • their employer does not offer a pension scheme, or 

  • they are included in a pension scheme for death-in-service benefits only, or

  • they are not eligible to join the company’s pension scheme or will not become eligible to join the pension scheme within six months from the date they began working there, or 

  • they are included in a pension scheme that does not permit the payment of additional voluntary contributions (AVCs).

 

Pensions, Employer Responsibilities

 

Even if there is only one ‘excluded employee’, an employer must:

  • enter into a contract with a PRSA provider (there is no charge for doing this) 

  • provide employees with access to a Standard PRSA  

  • allow reasonable paid leave of absence, subject to work requirements, so that excluded employees can set up a  Standard PRSA 

  • make deductions from payroll if required  

  • advise employees in writing (normally on their payslip) at least once a month of their total contribution, including employer’s contribution, if any.

 

What an Employer is NOT responsible for:

  • You’re not obliged to give any advice to employees in relation to PRSAs, but you must allow your PRSA provider or intermediary reasonable access to your employees to brief them on PRSAs. 

  • You don’t have to contribute to PRSAs on behalf of your employees, but if you decide to do so, your contributions must be paid to the PRSA provider within 21 days of the end of the month in which the employer contributions are due. And please note that you cannot make any deductions from this payment.

  • You are not responsible for the investment performance of PRSAs

 Pensions, Retiring

What are the consequences of non-compliance?

Be aware that there are significant penalties for failing to discharge your obligations.  The Pensions Board will issue on-the-spot fines and prosecute any employers found in breach of the obligations, so it pays to get it right.

As an Employer you may be subject to an on-the-spot fine if:

(a)     You fail to respond to a request by The Pensions Board to furnish information about their provision of access to a Standard PRSA for ‘excluded employees’ and

(b)     You do not provide at least a monthly statement to employees showing contributions deducted and employer contributions paid in the previous month.

The bottom line is that this is not an issue that you can afford to get wrong. To find out more about your obligations, there’s a very helpful booklet on the Pension Board’s website.

 

IFG have many years of experience of providing Pension Scheme Design & Risk Advisory services to Irish companies. They would be delighted to answer any and all of your pension queries if you would like to find out more www.ifg.ie .

 

 

Annual Leave Tracker
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Employers reducing salaries without consent

If a salary reduction is imposed without consultation or employee agreement, an employee now only has three (rather than four) potential legal opportunities to seek redress from his or her employer.

If an employee’s wages are cut his or her first option is to claim Constructive Dismissal under the Unfair Dismissals Acts 1997-2007. Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. In this instance, the employee must be able to prove that their position became unsustainable as a direct result of the involuntary reduction in pay.

Reduction in paySecondly, where an employee’s salary is reduced, he or she has the opportunity to bring a trade dispute under the Industrial Relations Acts. The Industrial Relations Acts deal with disputes between employers and workers that are connected with the employment or non-employment, or the terms and conditions of or affecting the employment, of any person.

 

Thirdly, if an employer cuts an employee’s pay, the employee could claim that their contract has been breached. Defending this could prove very costly for the employer. Furthermore, an injunction may be granted to prevent the contract breach/reinstate the original salary.

Salary Reduction

 

In the past employees whose wages were cut without prior consent had a fourth option. They had the opportunity to take a case (and were likely to succeed) under the Payment of Wages Act 1991. Claims in relation to a reduction in wages, however, may no longer be successful if taken under this Act as a result of a recent Employment Appeals Tribunal determination. The specific EAT case referenced here is an appeal of a Right’s Commissioner decision in the case of Santry Sports Clinic v 5 employees.

The employees in the aforementioned case were claiming for an 8% reduction in their pay that was imposed between February and March 2010. Santry Sports Clinic stated that the reduction was essential. According to the employer, all employees received letters detailing the 8% reduction in advance and, while only 30% of employees agreed to the reduction via return letters, no one officially objected or stated that they would not accept the pay cut and so it was implemented as planned.

The Employment Appeals Tribunal considered all evidence and representations made at the hearing as well as all other submissions made. The Tribunal noted the High Court decision in the case of Michael McKenzie and others and Ireland and the Attorney General and the Minister for Defence Rec. No. 2009. 5651JR. In paragraph 5.8 of this decision the Judge stated that “the Payment of Wages Act has no application to reductions as distinct from ‘deductions’.” The Tribunal followed the High Court decision on a point of law and, therefore, the appeal was successful and the decision of the Rights Commissioner was entirely overturned in the case of Santry Sports Clinic v 5 employees.

Reducing employee's pay

 

This case brought to light the fact that the Payment of Wages Act 1991 refers to “deductions” as opposed to “reductions” and, as a consequence, employees whose wages are reduced without prior consent are now unlikely to succeed if they opt to take a case against their employer under the Payment of Wages Act 1991.

This is particularly significant for claims that are currently being processed by the Employment Appeals Tribunal.

Employers need to remember that, although this option has essentially been closed off for employees as a result of the above-mentioned High Court decision and the EAT case, they still have several avenues open to them if they wish to take a claim where a reduction of wages has been imposed by the employer without prior consent.

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Christmas Parties – Advice for Employers

With the Christmas season upon us again many employers will arrange a work-related social event (Christmas party) in order to thank employees for their efforts and hard work over the past year.

Christmas Season, Christmas Parties, Work-Related Social Events

Despite Christmas parties occurring mostly outside of the work place, responsibility still lies with the employer for the protection and safety of their employees.   Each year cases concerning bullying and harassment are brought before the Rights Commissioner and the Equality Tribunal. These incidents can be perpetrated at work-related social events like the Christmas party and the employer is often held liable for such action.  
For the protection of the organisation and to avoid any such issues, below is a list of preventative steps which can be taken:

 

  • Re-circulate the company’s Dignity at Work policy, which should include reference to bullying, harassment and sexual harassment in the workplace.  This policy should clearly state that work-related social events fall under the terms of this policy. 

  • Ensure that it is clearly outlined to employees that they may be subject to disciplinary action leading up to and including dismissal should they be found in breach of the company’s Dignity at Work policy at a work-related social event. 

  • Ensure that employees are aware of the company’s Disciplinary and Grievance procedures.

  • Re-circulate the company’s Social Media policy to ensure employees are aware of the rules surrounding publishing photographs online in order to prevent any privacy infringements arising or damage being caused to the company’s reputation. 

  • If the event is scheduled on an evening where employees are required to work the following day, ensure employees are aware of the company’s Absence policy.

  • Brief members of Management on the above policies and ensure that they know how to deal with behaviour that could be deemed inappropriate at the event should it arise.

  • Advise Management not to discuss issues relating to salaries, performance or career prospects at the event. 

 

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