Sunday, 8th December 2019

Monthly Archives: April 2014

Employers slowly beginning to ban e-cigarettes in Irish workplaces.

Employers are starting to implement e-smoking bans in workplaces in line with the current tobacco smoking ban.

In March 2014 Bus Eireann and Dublin Bus extended their respective “no smoking” policies to prohibit the use of e-cigarettes and vapour devices on their busses – employees, as well as customers, are banned from smoking any form of cigarette except in designated areas. Irish Rail also implemented the ban in the recent past and now universities and other institutions and companies are beginning to follow suit by disallowing the use of cigarette substitutes.

There are a few reasons for this -

  1. To avoid ambiguity – from a distance e-cigarettes can appear quite like a regular cigarette. 

  2. Because e-cigarettes contain nicotine – nicotine is a highly addictive and harmful drug. Nicotine was formerly used as an insecticide and can increase blood pressure and heart rate in humans.

  3. Because the effects of e-smoking are not yet known – e-cigarettes are a relatively new innovation and consequently the long-term effects on health are unclear.

  4. Because of the vapour omitted – there is uncertainty over the contents and effects of this vapour on the e-cigarette smoker and the people in his or her presence.

 

e-smoking ban

 

    While there is no legislation currently in place in Ireland disallowing the use of e-cigarettes and similar products in the workplace, more and more employers are beginning to enforce their own internal rules in relation to their use at work.

    However, if the rules around e-smoking in the workplace are not covered in the Employee Handbook, the employer could find it difficult to enforce such a policy. The rules surrounding e-cigarettes should be available for all employees - non-e-smokers as well as e-smokers - so there is no confusion over what is/is not allowed.

    If an employer is considering revising the company’s policies then it is imperative that he or she ensures that the new rules are clearly communicated to employees through an update of the Employee Handbook (which should contain all HR policies).

    At least two employees in The United Kingdom have recently brought cases forward claiming that they were “victimised” by their employers for use of e-cigarettes in the course of their work. It is only a matter of time before we start to see cases trickle through the system in Ireland and so it would serve employers well to prepare for this potentially costly exposure by introducing very clear policies in relation to e-cigarettes as soon as possible.

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    Employer Responsibilities – Contracts of Employment

    Employers are legally obliged to provide workers with a written statement of the employment agreement between the two parties (the contract) within two months of the employee commencing employment.

    Having a contract in place can offer protection to the Company in the event of a dispute or issue arising. This document can help to safeguard the Company in the event of employee litigation or Labour Court hearings. 

    contracts, contracts of employmentReasons why you, as an Employer, need to issue a Contract of Employment:

    • It outlines the requirements of the position and the conditions the person is meant to work against.

    • It addresses the legal requirements against which all employees are protected today.

    • In the event of poor performance the employer can refer to the contract and all conditions contained therein, and manage the employee against such conditions. 

    • The use of probationary periods is fundamental for all new employees.

      An example of what an employee’s rights are in the event of not having a contract in place:

      If the employer fails to give written details of the terms of employment, the employee can bring a complaint to a Rights Commissioner. The employee must make the complaint when in employment or within 6 months of leaving employment.

    describe the image

    Legal Requirements:

    • The Terms of Employment (Information) Acts 1994 and 2001 provide that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.

      The statement of terms must include the following information:

      • (a) the full name of employer and employee
      • (b) the address of the employer
      • (c) the place of work
      • (d) the title of job or nature of work
      • (e) the date of commencement of employment
      • (f) in the case of a temporary contract of employment, the expected duration of the contract or, if the contract of employment is for a fixed term, the date on which the contract expires,
      • (g) the rate of pay or method of calculation of pay and the pay reference period for the purposes of the National Minium Wage Act, 2000
      • (h) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section.
      • (i) pay intervals
      • (j) the terms of conditions relating to hours of work (including information on overtime and entitlements to rest breaks and rest periods as per the Organisation of Working Time Act)
      • (k) terms or conditions relating to paid leave (other than sick leave)
      • (l) terms and conditions relating to sick/injury leave and sick pay and pensions and pension schemes
      • (m) notice which the employee is entitled to receive and obliged to give
      • (n) reference to any collective agreements which directly affect the terms and conditions of the employee’s employment.

    describe the imageIn the case of the particulars noted at (g) (h) (i) (j) (k), (l) and (m) above, the employer, as an alternative to providing all the details in the statement, may use the statement to refer the employee to certain other documents containing the particulars, provided such documents are reasonably accessible to the employee in his/her employment.

    The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee's entitlements under the Minimum Wage Act, 2000. (Under that Act the employer may calculate the employee's minimum wage entitlement over a reference period that is no less than one week and no greater than one month).

    The statement of terms must also inform the employee that he/she has the right to ask the employer for a written statement of his/her average hourly rate of pay for any reference period (except the current reference period) in the 12 months prior to the date of the employee’s request.

    An Employee Working Abroad is also entitled to details of the following:

    • The period of employment outside the State

    • The currency in which they will be paid

    • Any other benefits-in-kind or cash that will be provided

    • The terms and conditions applicable on the employee's return home

    Here are examples of some further terms and conditions of employment that are not required by law but are highly recommended:

    • Probationary Period and Probation Policy

    • Hours of work / additional hours / overtime / shift liability / weekend liability / night work liability / public holiday liability

    • Performance related bonuses

    • Absence Management

    • Medical examination

    • Holidays, public holidays, all other forms of leave

    • Grievance and Disciplinary Procedures

    • Confidentiality

    • Company Property

    • Phone and Mobile Phone Usage

    • Right to Inspect / Search

    • Drugs & Alcohol Policy / Right to Test for Intoxicants

    • Retirement

    • Company Rules and Regulations

    • Bullying and Harassment / Respect and Dignity at Work

    • Internet, Email & Social Media Usage

    • Use of Company Vehicles

    • Suspension without pay

    • Break and rest periods / exemption provision for employer for recording breaks

    • Return of company property

     Contracts

    Have you heard of NERA?

    The National Employment Rights Authority (NERA) delivers unprejudiced information on employment rights legislation to employers and employees in Ireland. NERA is charged with monitoring the employment rights of employees within the country. NERA inspectors perform various checks around the country and investigate suspected breaches of employment rights – it is important to bear in mind that a significant number of these inspection are unannounced. If NERA finds that an employer is not complying with employment rights legislation inspectors will seek reparation from the employer on behalf of the employee. In certain circumstances prosecutions against the employer may result.

    NERA has the power to chase awards made by the Labour Court, the Rights Commissioner or the Employment Appeals Tribunal.

    In order to pass a NERA inspection; employers must have provided their employees with clarity on the terms and conditions of their employment.

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    ECJ declares Data Retention Directive Invalid

    The European Court of Justice (ECJ) declared the Data Retention Directive invalid yesterday, 8th April, 2014, in response to a case brought by Digital Rights Ireland.

    In 2006, Digital Rights Ireland initiated Court proceedings against the Irish State. The case brought the legality of the country’s data-retention legislation into question. The current data-retention legislation requires phone companies and internet service providers to store data about customer locations, e-mails, phone calls and text messages for a period not less than 6, and up to a maximum of 24, months.

    In 2012, the High Court in Ireland referred the Digital Rights Ireland case to the European Court of Justice and, in 2013, the advisory legal opinion of Pedro Cruz Villalón, Advocate General, was that the Directive should be overturned. The Advocate General stated that the Directive was unlawful and not compatible with the Charter of Fundamental Rights.

    ECJ Data Retention

    In line with the Advocate General’s advisory legal opinion of 2013, the ECJ yesterday announced that the Directive, which “entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data”, was invalid.

    Although the Directive itself has been found invalid, the national legislation brought in by individual E.U. countries to deliver it still stands. However, this ECJ judgment means that the Digital Rights Ireland case, which was initiated against the Irish State in 2006, can now proceed.

    So, while it is unlikely that we will see an immediate change in the rules associated with the collection and storage of personal data by phone companies and ISP’s, the fact that the Digital Rights Ireland challenge has been allowed to proceed means that we should expect amendments to the legislation in the near future.

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    Employers must maintain terms & conditions of Employees on Maternity Leave

    Equality Tribunal awards €80k to employee subjected to discriminatory treatment. The former employee (the complainant) in this case commenced employment with her employer (the respondent) in 2003 – She was appointed Financial Controller in 2007 and her employment ended in February 2011. She referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 12 July, 2011.
     

    The respondent, who had gone into liquidation by the time the Hearing took place in December, 2013 did not attend the Hearing.  The liquidator, who received adequate notice of the Hearing, chose not to attend either. The Hearing proceeded in their absence and the complainant built a case against her former employer in front of Equality Officer, Vivian Jackson.

    Equality Tribunal

    According to the complainant’s uncontested evidence, she informed her employer that she was expecting her third child in November 2009. She alleged that her employer’s attitude towards, and treatment of, her worsened from this point. She had had a miscarriage in the summer of 2009 and, according to the complainant (Ms. M), her employer (Mr. W) responded to her November pregnancy news with the comment “Jesus Lisa, you don’t hang around”.

    The complainant gave evidence that a few weeks after this comment her employer again referenced her pregnancy but this time it was in front of clients and his comment shocked her. The complainant gave evidence that Mr. W implied to the clients that he was not happy that she was pregnant and stated that ‘she was meant to stop after two’.

    Maternity Leave

    The complainant described an incident in January 2010 where she was involved in a car accident. She claimed that a doctor certified her as unfit for work for a week in order to ensure that she and her unborn baby were unharmed. Even though she did not have access to a vehicle for the period, the respondent told her that she was required to attend work the following Monday. Ms. M complied with her employer’s request because she was fearful of losing her job.

    In February 2010, Ms. M requested a meeting in order to discuss cover during her maternity leave - this was due to begin at the end of April 2010. Mr. W agreed to hire an employee during the period that Ms. M was due to be on her protected leave. The complainant was under the impression that the new hire would begin work on a fixed term contract, however, during the course of the interview the successful applicant, Ms. S, asked about the duration of the contract and, to the complainant’s surprise, Mr. W said that he was ‘not sure that Lisa will be coming back to work’. The complainant said that she had never implied that she would not return to work and, in fact, not returning was ‘undesirable from a personal and professional point of view and impossible from a financial perspective’.

    Maternity Leave
    The complainant gave evidence that the respondent ‘froze her out’ – he undermined her with clients and changed arrangements regularly. He also began removing tasks from the complainant. Ms. M believes that this occurred because her employer no longer felt that, with three children, she would be committed to the company. The complainant demonstrated times where she had shown considerable commitment to the company in the past and said that the employer had no reason to believe that her commitment would diminish.

    The complainant sought a meeting with Mr. W prior to her leaving for her maternity leave – she wanted to discuss her remuneration and benefits during the leave. In the past, the employee had been allowed to keep her company phone and car during the leave and the employer also topped up her state maternity benefit so she continued to receive her normal monthly net income throughout her maternity leave. This time it was different – Mr. W only offered the complainant a top-up payment of €150 per month – far less than what was offered during previous leave periods. Ms. M accepted this. To her surprise, Ms. M was obliged to return her company car and phone for the duration of her leave on this occasion.

    Ms. M was due to complete her maternity leave at the end of January 2011 and in December 2010 she contacted her employer to give notice of her intention to return to work. She did not receive a response to this e-mail and so she e-mailed Ms. S, who had been hired to cover the period of maternity leave. Ms. S confirmed that Mr. W had received the complainant’s e-mail. Ms. S sent another e-mail on 6th January 2011 requesting that Ms. M attend a meeting with Mr. W on 14th January.

    Redundancy

    At this meeting, Ms M was notified that her role of Financial Controller no longer existed in its previous format within the new company structure. Ms M was informed that the role was redundant and that another position was available to her as an alternative. The new position was a more junior role that not only incorporated additional hours but also a 40% reduction in pay. Ms M was not satisfied with this – she found it to be an unacceptable alternative to the Financial Controller role and demonstrated that her original role was not in fact redundant as MS. S continued to perform Ms. M’s original duties and was listed as the company’s Financial Controller on the company website.

    The complainant researched her position in light of the new role that her employer offered her as an alternative and realised that she was not obliged to accept the offer. The respondent offered Ms. M her original terms and conditions (including rate of pay and hours), however, the role that she was being asked to perform going forward was a clear demotion and a serious reduction in responsibility. She requested to return to her role as Financial Controller. Again it was expressed by the respondent that this role was redundant and he offered her 14 days to decide whether or not to take the new role of ‘Credit Control Manager’. Ms. M said that she was only happy to return to her original role and stated why the new offer was unacceptable in light of the fact that her original role clearly still existed. Mr. W wrote to Ms. M a number of days later rejecting her arguments and adding that, as she had not reported for duty, he considered her to have resigned.

    Dismissed

    Vivian Jackson, Equality Officer, found that Ms. M had been subjected to a range of unlawful treatments. Her employer made it impossible for her to proceed wither pre maternity leave role and essentially dismissed her. The Equality Officer ordered that the respondent pay the complainant €80,000.00 in compensation for the discrimination inflicted on her.

    Compensation

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    Why Companies are choosing to Outsource their HR

    The number of cases annually referred to the Employment Appeals Tribunal increased three fold during the Irish economic recession and the average compensation awarded by the Tribunal in Unfair Dismissal cases rose from €11,476.00 to €18,047.85 between 2009 and 2011.

     

    During this time of economic hardship Employers must pay even closer attention than ever before to their expenditure. Many organisations are forced to downsize and - in this era of increased Employee Litigation - making sure you follow appropriate procedures in redundancy or disciplinary scenarios, for example, is growing in importance.
    Outsourcing

    It is at times like these that Companies need to concentrate on their Human Resource functions even more. Some elements of HR, however, can be both complicated and time consuming – an enormous burden on Employers. In recent years the focus has moved towards legal compliance (which can be a minefield with all of the pieces of Employment Legislation currently in operation) and administrative processes that can slow down the productivity of the firm.


    For SMEs in particular, it makes a lot of business sense to outsource HR tasks as firms specialising in the field can improve efficiency dramatically. Outsourcing allows Companies to offload work that isn’t part of their core business. It also saves money. At a Company that doesn’t have the funds to hire specialists outsourcing can allow it to gain access to a vendor’s services when required as well as the expertise and wealth of experience that they have accumulated – all at an affordable price.   

    While SMEs don’t have the same number of Employees as larger corporations and multinationals they still require the same HR elements on a smaller scale. For instance, they still need to recruit staff, they still need to abide by the vast array of Employment Laws and still require Employment Documentation (Contracts of Employment etc.).
     

    Contact The HR Company

    Although some Companies do it, most SMEs cannot justify spending a large portion of their annual budget setting up a HR department comprehensive enough to incorporate the abundance of skills required to achieve a smooth-functioning, compliant working environment. Consequently, more and more Companies are choosing to outsource operations like HR and are directing vital, scarce, finances and resources towards other core/revenue-generating areas of the business.


    On the other hand, some Employers end up trying to balance HR duties in addition to their other responsibilities which can leave opportunities for threats and vulnerabilities to creep in. As time goes by many Employers are realising that assigning a large percentage of their time to one area is not just inconvenient but impractical, too. Juggling all elements of a business without assistance can be extremely difficult and for this reason many Employers are opting for the cost-effective third party route which involves the use of an external HR Company. This gives them enhanced peace of mind and confidence that they are working within the confines of all Employment Legislation. Outsourcing Companies can deal with HR successfully and as a priority so that Employers do not have to concern themselves with the associated time constraints and conflicts. Companies can eliminate exposures they did not even know existed quickly and in a cost-effective manner by availing of the services of a HR Company.
    Outsourcing HR
    HR Companies deal with all features of Human Resources comprehensively. They have a base of specialist Employees who are trained and experienced in all areas of Employment Law – meaning they are fully equipped to deal with any Employee Relations issues that arise in the workplace. Engaging the services of HR professionals gives Employers access to a bank of relevant knowledge and experience. HR Companies are well prepared to support or advise SMEs without costing an arm and a leg. They keep up-to-date with all changes in Irish Employment Legislation and are able to offer better support and guidance than the client can attain in-house. Navigating Government regulations can be a draining activity for Employers - it can be a time consuming and complicated process, however, it is what HR advisors are trained to do.


    HR firms can do a lot more than you might think – not alone do they have a top-class portfolio of skills, knowledge and experience concentrated in this specific area. They can offer a range of services and support at an extremely affordable price. Some HR Companies provide comprehensive services for as little as €100 per month – Hiring a HR Employee, even on a part-time basis, would cost far in excess of this. Similarly, many Employers currently engage the services of Solicitors to prepare Contracts of Employment and other Employment Documentation – this can also be an extremely costly process.  
    Outsourcing HR 
    HR Companies prepare Employment Documentation for their clients and on top of that they are there to advise on all individual Employee-related issues – discrimination claims, rest or annual leave entitlements, disciplinary and redundancy procedures, dismissals, grievances and much more. Lots of Companies operate outside of office hours and so some HR Companies even provide 24/7 advice lines for their clients meaning a client will never have an anxious wait for an answer. HR firms also provide support to existing HR departments within Companies - the level of service and associated costs are completely dependent on the needs of the individual Company.


    HR firms are growing in popularity. In the past outsourcing was often a difficult process because of the issues distance can sometimes create. Thanks to the advances in technology, however, dedicated HR experts are only a couple of clicks or a phone call away – so Human Resource emergencies can be dealt with on the spot.

     

    Reasons influencing decision to co-source:

    Improve cost-effectiveness

    Reduce administrative costs

    Redirect HR focus toward strategy/planning

    Allow company to focus on core business

    Provide seamless delivery of services

    Capitalise on technological advantages/expertise

    Improve customer service

    Have insufficient staff

    Decrease response time to clients

    Increase flexibility in handling special needs

    Increase level of accuracy

    Control legal risk/improve compliance

      

    Tangible Cost Savings:

    Reduce employee turnover

    Control absenteeism

    Efficient use of HR systems & applications

    Reduce administration costs

    Flexible cost base

    Training expense

    Hiring costs

     

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    10 tips on creating a Positive Work Environment

    A Positive Working Environment is essential in order to ensure high levels of productivity. This kind of workplace promotes efficiency and makes sure staff are satisfeid in their roles and with their colleagues. A Positive working environment ensures conflict in the workplace is minimal and daily business operations, in general, run smoothly!

     

    Positive Workplace Environment

     

    What to do to create a Positive Working Environment...

    1. Build Trust between all stakeholders

    2. Communicate Positively and Openly – Transparency is key

    3. Create Team Spirit – Cooperation and Synergy is hugely important

    4. Be an approachable employer/manager so that issues are raised early

    5. Expect the best from your employees and they will be encouraged to give you their best

    6. Recognise  your employees and their hard work and they will always work hard for you

    7. Give credit where credit is due and take responsibility for your actions

    8. Carry out employee evaluations and reviews and make the experience a positive one

    9. Provide a physical environment that is positive – make them want to come to work

    10. Make the work environment interesting – this will encourage creative thinking

    These tips are derived from the guidelines set out by the Workplace Relations website http://www.workplacerelations.ie/en/.

     

    Click the image below to download your Staff Suggestions Form

    Staff Suggestions

     

     

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