€63,000 has been awarded to a receptionist by The Equality Tribunal after it found she was discriminated against on the grounds of gender and race, and subsequently victimised. Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later. Ms Wach went ... Read More »
Did you know that all hours worked by any employee are taken into account when calculating Annual Leave? This will include any hours worked in addition to normal working hours. Further to this there are additional leave periods that will be included ... Read More »
In accordance with the provisions of the Carer’s Leave Act, 2001, if an employee has completed 12 months’ continuous service with you; he or she is entitled to take unpaid Carer’s Leave in order to care for a person (a ‘Relevant Person’) who requires full-time care and attention. Carer's Leave is protected leave.
A ‘Relevant Person’
A ‘Relevant Person’ is a person who is over the age of 16 and is so incapacitated as to require full-time care and attention or a person who is under 16 and in receipt of a Domiciliary Care Allowance. A Deciding Officer of the Department of Social Protection determines whether or not an individual qualifies as a ‘Relevant Person’. Employees may be entitled to receive Carer’s Benefit/Carer’s Allowance whilst on leave. You should inform employees that they should apply to the Carer’s Benefit Section at their local Social Welfare Office so their eligibility can be assessed. There is no statutory obligation on you as an employer to pay employees during Carer’s Leave.
Other than their right to remuneration, you should treat employees as though they have been working during a period of Carer’s Leave. Annual Leave and Public Holidays will accrue as normal for employees during the first 13 weeks of Carer’s Leave. The minimum statutory entitlement is 13 leave weeks and the maximum period is 104 weeks. The 104 weeks (2 years) can be taken in one continuous block or it can be broken up into multiple separate periods of leave – there must be a gap of at least 6 weeks between periods of Carer’s Leave.
If one of your employees intends to avail of Carer’s Leave then he or she should write to you not less than 6 weeks before the proposed commencement of the leave in order to apply for this leave. The application should include the following details:
• The manner in which the employee intends to take the leave
• The proposed commencement date and, where possible, end date (this won’t always be possible – especially if the ‘Relevant Person’ is terminally ill; for instance)
• That he or she has made an application to the Department of Social Protection for a decision to be made in respect of the person for whom they propose to avail of the leave
A confirmation document should be signed by you and the employee prior to the commencement of Carer’s Leave.
If the employee would like to return to work on a different date than previously agreed (if one was agreed) then he or she should provide you with a ‘Notice of Return to Work’ not less than 4 weeks prior to the intended return date.
Termination of Carer’s Leave
Carer’s Leave may be terminated for several reasons. If it becomes apparent that the person for whom the care is being provided is not in need of full-time care any longer for whatever reason, you may terminate the leave. The Department of Social Protection will make a decision in certain instances.
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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.
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’.
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’.
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.
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.
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.
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Employees in Ireland are entitled to avail of Parental Leave when they become a parent. This Leave is for the sole purpose of taking care of the child in respect of whom the Leave is being taken. This Leave is different to Maternity/Paternity Leave.
The employer has the right to cancel the Leave if he or she discovers that the Leave is being used for another purpose.
Parental Leave applies to all employees who have completed 12 months' continuous service.
However, if a child is approaching the age threshold (described below) and the employee has accrued at least 3 months’ service then he or she will be entitled to the Leave on a pro-rata basis.
Both parents have an equal separate entitlement to Parental Leave and are encouraged to avail of their own entitlement. Where both parents work for the same employer, the employer may agree to transfer one parent’s Leave to the other parent. The employer is in no way obliged to agree to this.
The allowance increased from 14 to 18 weeks per child in March 2013. If an employee has more than one child, except in cases of multiple births (twins etc.), Parental Leave is limited to 18 weeks in any 12 month period. If the employer agrees, however, more weeks per year can be allowed.
The 18 weeks per child may be taken in one continuous period or in separate blocks of a minimum of 6 weeks at a time. There must be a gap of at least 10 weeks between two periods of Parental Leave per child. If the employer agrees, the employee can take Leave in a different pattern. This, for instance, could consist of single days at a time or even hours. This can often work out better for the business, however, it can be complicated to keep track of.
Separating the Parental Leave entitlements in to shorter periods of days/hours can be agreed on an individual basis – this is at the discretion of the employer and is based on the operational needs of the business - there is absolutely no obligation on the employer to agree to shorter periods.
Many employees take one day per week for the duration of their Leave – In this instance, if the employee normally works a 5 day week, the employee would be entitled to work 4 days per week for 90 weeks.
The employer must maintain detailed records of all Parental Leave as it is used. Employers must keep these details for 8 years.
The Leave must be taken before the child reaches 8 years of age. Exceptions apply in the case of children who are adopted between the ages of 6 and 8 – Leave in this instance may be taken up to 2 years after the date of the adoption order. Similarly, exceptions to the age threshold are made where a child has a disability – Leave may be taken in respect of children with disabilities up to the age of 16. Where illness or other incapacity prevented the employee taking the Leave within the normal period exceptional allowances may be made.
Parental Leave applicants must write to their Manager requesting the Leave 6 weeks before the expected commencement date.
Where Parental Leave is approved by the employer a Parental Leave Agreement should be drawn up.
Parental Leave remains as being unpaid Leave from employment. However, employers should be aware that employees retain their right to accumulate Annual Leave while on Parental Leave and also employees retain their entitlements for Public Holidays while on Parental Leave. There will be a loss of pension contributions, where relevant. The employee's PRSI contributions will be protected during Parental Leave. The employee will then get credited PRSI contributions for this time.
An employer may postpone a Parental Leave application for up to 6 months (this must be done before the confirmation document is signed). If the Leave would have a substantial, adverse effect on the operation of the business the employer would have grounds to postpone the requested Leave. Postponement due to a lack of cover/due to the fact that other employees are already on Parental Leave would be justified. Normally, only one postponement is allowed.
The employee is entitled to return to their job after Parental Leave, unless it is not reasonably practicable for the employer to allow them to return to their old job. In this case, the employee must be offered a suitable alternative on terms no less favourable than the previous job, including any improvement in pay or other conditions, which occurred while the employee was on Parental Leave.
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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.
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
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.
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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There are several types of leave that an employee may be entitled to. Some forms of leave are statutory entitlements and some other forms are not. Maternity Leave, for instance, must be given to employees when they are pregnant. Some forms of leave are paid and others are not. This can depend on statutory obligations and on the terms and conditions set out in the Contract of Employment. Annual Leave is a statutory entitlement and it must be paid by the
employer. Sick Leave, however, is not always paid by the employer (this depends on individual company policies).
Force Majeure Leave is less commonly discussed. The purpose of Force Majeure Leave is to provide limited, paid leave to enable an employee to deal with family emergencies resulting from injury or illness of a close family member. Force Majeure Leave applies where the immediate presence of the employee is urgent and indispensable (essential).
A close family member is defined as one of the following:
- A child or adopted child of the employee
- The husband/wife/partner (same or opposite sex) of the employee
- A parent/grandparent of the employee
- A brother/sister of the employee
- A person to whom the employee has a duty of care (where he or she is acting in loco parentis)
- A person in a relationship of domestic dependency with the employee
- Persons of any other class (if any) as may be prescribed
By its nature, an employee will not usually be able to give notice of the need to take Force Majeure Leave. The employee should, however, inform the employer (in writing) of reasons for taking the leave as soon as is reasonable practicable. The employee should provide details regarding the need for the leave and should confirm who the leave was taken in respect of.
Employers are obliged to keep a record of Force Majeure Leave taken by employees.
Employees will be entitled to:
- up to 3 days paid Force Majeure Leave in any consecutive 12 month period; or
- up to 5 days in a 36 consecutive month period.
Absence for part of a day is usually counted as a full day of Force Majeure Leave. Employees are entitled to receive pay for this type of leave. Employers can grant employees more than the number of days outlined above; however, they are not obliged to do so.
Employees are protected against Unfair Dismissal for taking Force Majeure Leave or for proposing to take it.
Death is not covered under Force Majeure Leave – Leave taken when a death occurs falls under Compassionate Leave and this tends to depend on employee contracts as well as custom and practice within the workplace.Read More »
The Budget 2014 announcement that Maternity Benefit is to be capped at €230 per week has significant implications for numerous employees and employers alike.
The current upper rate of €262 per week is an entitlement enjoyed by the vast majority of women in Ireland claiming Maternity Benefit. The reduction by €32 per week, which will be effective for new Maternity Benefit claims from January 2014, may discourage women from having children. Alternatively, it may force mothers to avail of shorter periods of Maternity Leave than they would like because they simply cannot afford to remain out of the workplace for the full 6 month period.
The reduction of €32 per week over 6 months will see many new mothers lose out on €832 in Maternity Benefit.
Some employers pay the difference between the Department of Social Protection Maternity Benefit figure and the employee’s regular salary (a "top-up" amount) as a gesture to employees so that they do not suffer major financial implications while on Maternity Leave.
The Budget 2014 decision to reduce the amount paid by the State means that employers who cover the difference between Maternity Benefit and an employee's regular salary will now have to find an additional €832 per employee over the 6 month period in order to maintain the same level of maternity pay for employees while they are availing of maternity leave.
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Sick pay from employers is not a statutory entitlement. It is up to the employer to decide whether or not to pay employees while they are out of work sick (once all employees are treated equally). Employers are obliged to provide details of their sick pay policy in employment contracts.
During times of incapacity or illness the employee can apply to the Department of Social Protection for Illness Benefit (once the employee has paid enough in PRSI contributions he or she should be entitled to Illness Benefit).
If it is Company policy to continue to pay employees while they are ill or incapacitated, the employer often requires that the employee signs over any State Illness Benefit received to the Company.
A Budget 2014 announcement confirmed today (15th October, 2013) that the number of
“waiting days” for Illness Benefit will be increased from 3 days to 6 days from 1st January 2014.
What this means is that an employee will not be entitled to receive Illness Benefit for the first 6 days of any period of incapacity for work. This is more than one full working-week.
This has the potential to significantly affect a large number of people - employees and employers alike. The extension, which is said to save the state €22million, will negatively impact employees who work for companies that do not pay for sick leave – doubling the number of days that must elapse before they are entitled to receive any income.
The decision will also have an impact on companies who continue to pay employees during periods of illness or incapacity but recover some of the costs of doing so by forcing employees to sign over any State Illness Benefit received as, from January of next year, the employer will not now receive any refund for the first 6 days of absence.
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Annual leave is paid time off work that employees are granted by their employers - it can be used for whatever the employee wishes. It is important for employees to recharge the batteries and annual leave helps maintain a motivated and productive workforce. It is essential to note that the employer is statutorily obliged to provide a certain amount of annual leave to his or her employees. An employer can, of course, provide more leave than he or she is obliged to give – if an employer offers more leave to employees with long service histories or employees who exceed targets, for instance, this policy should be clearly defined and should be applied fairly across the board.
Regardless of the employee’s status or length of their service everyone is entitled to annual leave. All time worked is eligible for paid holidays.
Here is an easy guide to assist employers in working out what leave should be allocated to each employee:
There are three methods used to work out leave entitlements:
a) The most common method used is: 4 working weeks in a leave year during which the employee works a minimum of 1,365 hours (Unless the employee has changed employment during that year).
b) 1/3 of the employee’s working week per calendar month of at least 117 working hours (Eg: 1.67 * 12 = 20 days)
c) 8% (.08) of the hours worked by the employee in the leave year (the total is not to exceed 4 working weeks)
In some instances an employee’s leave could be worked out using more than one of the approaches listed above – where this is the case all applicable methods should be calculated and the employee shall be entitled to the highest result. Remember - the maximum statutory annual leave entitlement is four of his / her normal working weeks.
How to calculate an employee’s annual leave pay:
Not everyone works a 9-5 office job and not all employees earn the same gross figure on a weekly basis so here is a guide on how to determine holiday pay due to various categories of employees:
(a) If the employee’s pay is calculated by a fixed rate or a salary then the figure due to the employee per week of paid annual leave is equivalent to the amount he or she received for the normal weekly working hours last worked - This payment includes any regular bonus or allowance (that isn’t based on work completed) - it excludes any overtime pay.
(b) If the employee’s pay is not calculated by a fixed rate or salary but instead by commission, for instance (or based on productivity rates) the amount paid to this employee per week of annual leave should equal their average weekly pay calculated over the 13 weeks prior to their annual leave commencing. (If the employee did not work during that period, the average weekly pay is calculated over the 13 weeks prior to the employee’s last working day before the annual leave commences. This excludes overtime.
In order to accurately calculate the number of annual leave days an employee is entitled to it is necessary to incorporate all hours worked in the calculation including time spent on annual leave (yes, employees accrue annual leave while on annual leave!), time spent on maternity leave, parental leave, force majeure leave or adoptive leave as well as time spent on the first 13 weeks of carer’s leave. Employees do not accrue annual leave while on sick leave, occupational injury, temporary lay-off, or career break.
If an employee falls sick during his or her annual leave this day(s) is not counted as annual leave (once it is covered by a medical certificate) and the annual leave day is kept for them to use at a later date.
It is common practice for an employee to request their desired leave dates and usually, once an agreed period of advance notice is given (allowing the employer to arrange suitable cover etc.), the employer agrees. Annual leave is usually discussed in terms of weeks but, with employer consent, it can be broken down into shorter periods – often days or even half days at a time. It is the employer who approves holidays (it would not work from a business perspective if all employees were to arrange leave at the same time, for instance). The employer is, however, required to take the employee’s family responsibilities and need for rest and recreation into consideration.
This annual leave must be given to employees within the leave year or, with the consent of the employee, within the first six months of the following year. The onus is on the employer to ensure that the employee takes their statutory leave allocation within the appropriate period. Employees may, with the consent of the employer, carry over holidays that exceed the statutory allowance to the next year.
If the contract of employment is terminated and there is unused annual leave in respect of the employee the employer is obliged to compensate the employee for the accrued leave. It is illegal to pay an employee in lieu of the minimum statutory leave entitlement unless the employment relationship is terminated.Read More »