Employee Entitlements

The Protected Disclosure Bill 2013 was published on July 3^rd 2013 by Minister for Public Expenditure and Reform, Brendan Howlin, T.D. The Bill is to establish a comprehensive legislative framework protecting whistleblowers in all industries in Ireland.

The purpose of the legislation is to protect workers who raise concerns regarding wrongdoing (or potential wrongdoing) that they have become aware of in the workplace. The Bill will offer significant employment and other protections to whistleblowers if they suffer any penalties at the hands of their employer for coming forward with information of wrongdoing in the workplace.

The legislation, which is due to be enacted in the autumn, closely reflects best practices in whistleblowing protection in developed nations around the world.

According to Minister Howlin the Bill “should instil all workers with confidence that should they ever need to take that decisive step and speak-up on concerns that they have about possible misconduct in the workplace, they will find that society values their actions as entirely legitimate, appropriate and in the public interest”.

Some key elements included in the Bill are as follows:

Compensation of up to a maximum of five years remuneration can be awarded in the case of an unfair dismissal that came about as a result of making a protected disclosure. This would be a massive step forward in Ireland’s attempt to match the standards set by other established nations.

It is important to note that limitations relating to the length of service that usually apply in the case of Unfair Dismissals are set aside in the case of protected disclosures.

As a result of this Bill whistleblowers will benefit from civil immunity from actions for damages and a qualified privilege under defamation law.

The legislation provides a number of disclosure channels for potential whistleblowers and stresses that the disclosure, rather than the whistleblower, should be the focus of the attention.

Protections for the whistleblower remain in place even where the information disclosed does not reveal any wrongdoing when examined. Deliberate false reporting, however, will not be protected.

These measures, when enacted, should encourage more people to come forward, and feel comfortable doing so, when they become aware of (or suspect) any criminal activity, misconduct or wrongdoing in the workplace.

An employee recently requested that his employer dismiss him. When asked why he wanted to be let go the employee explained that he wished to spend more time at home helping his sick wife with the children and assisting with the domestic duties. The employer was considering doing as the employee asked as he felt that the motives behind the request were practical.

The employer, however, took a few moments to think about the request. He concluded that the employee had been a diligent worker and so was reluctant to see the employee leave his role. In the hopes that it might encourage the employee to consider changing his mind the employer decided to offer the employee a small pay rise and to be more flexible with him in terms of his working hours. After the employer made the offer the employee became frustrated and again asked the employer to fire him.

The employer was confused as to why the employee was so adamant that he wanted to be fired as he had always seemed quite satisfied in his role. The employer also wondered why the employee didn’t simply resign if he wanted to go so badly. The employer decided to seek some advice on the situation prior to making his final decision. After some research the employer realised that this request was a common one and that motives behind this type of request were typically financially-based ones.

If an employee leaves employment voluntarily and without a reasonable cause then he or she may be disqualified from getting Jobseeker's Benefit for 9 weeks, however, if the employee is dismissed from employment then he would be entitled to claim benefits earlier.

Social Welfare Fraud is a serious offense.

The employee became extremely angry when the employer refused to dismiss him. Had the employer satisfied the request and fired the employee the individual could have lodged a case for unfair dismissal. The employer was fortunate that he sought advice after receiving the request from the employee. Due to the fact that the employee had not done anything to warrant his dismissal it is likely that a claim would have succeeded in an Employment Appeals Tribunal scenario – Unfair Dismissal can lead to an award of up to 2 years’ salary.

Employers receiving requests along these lines should seek advice from Irish Employment Legislation specialists prior to taking any action.

Under the Organization of Working Time Act 1997 every employee in Ireland has a legal entitlement to breaks during their working day (or night) and is entitled to have clearly defined rest periods between their working days/nights.

Under the Organization of Working Time Act 1997 a rest period is defined as any time that is not working time.

In general an employee is entitled to a 15 minute break after the completion of 4.5 hours of work. If the employee is working a shift of 6 hours then he or she is entitled to a 30 minute break (the first break of 15 minutes can be included in this 30 minute allocation).

The employer is not obliged to pay employees for these break periods and they are not included when counting the total amount of time that the employee has worked.

The regulations vary slightly for different categories of employees - for instance, shop employees who work more than 6 hours at a time are entitled to a break of one consecutive hour between the hours of 11:30 and 14:30 if their work schedule incorporates this period.

Employees are entitled to 11 consecutive hours of rest in a 24 hour period – on top of this an employee should receive 24 hours of consecutive rest in every 7 day period and this 24 hour allocation should follow an 11 hour rest period. Where an employer does not give his or her employee a full 24 hour consecutive rest period throughout the course of one week he or she must give two of these 24 hour rest periods in the following week.  This rest period, unless otherwise stated, should include a Sunday.

Not all employees are governed by the break and rest period rules described above. Members of An Garda Síochána, The Defence Forces and employees who manage their own working hours are exempt.  Family employees on farms or in private homes are also excluded from the Organization of Working Time Act 1997 directives.

The working terms and conditions for people under the age of 18 are regulated by the Protection of Young Persons (Employment) Act 1996.

 In exceptional circumstances or emergencies an employer is exempt from providing the above mentioned rest periods but only where he or she provides equivalent compensatory rest. Where the rest period is postponed the employer must allow the employee to take the compensatory rest within a reasonable period of time. Employees working in transport activities or certain categories of civil protection services are exempt from the statutory break regulations specified above (the equivalent compensatory rest rules do not apply for these employees).

Employers should be aware that employees have 6 months to make a complaint regarding breaks and rest periods (in certain circumstance this period can be extended to 12 months).