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When should you use a Non Disclosure Agreement (NDA)?

A non-disclosure agreement (NDA), often referred to as a confidentiality or a secrecy agreement, is a legal contract between two or more parties outlining knowledge and/or information that the parties wish to share with one another but wish not to have accessed by third parties.

NDABy signing the document the parties agree not to disclose information that it contains. An NDA creates a confidential relationship between the parties to protect any type of sensitive material such as details of trade secrets – it prevents the dissemination of company or project-specific information that, if leaked, could be damaging for one or both of the parties involved. It usually prevents the signing party from benefiting commercially from the information.

NDAs are commonly signed when two companies are considering doing business with each other and need to exchange information to benefit the partnership. A mutual NDA restricts both parties in their use of the materials provided; alternatively, an NDA can also exclusively restrict the use of material by one of the individuals or groups involved.

Employers often request that an employee signs an NDA or a similar form of contract when he or she commences employment, or a new assignment, in order to maintain confidentiality.

NDA

 

An NDA incorporates various basics – the details of the parties who must adhere to the agreement and the information to be kept confidential (often including items such as unpublished patent applications, financial information, customer lists, discoveries and business strategies). When drafting an NDA it is important to include the disclosure period in the contract.

Those writing the NDA should note that if the recipient had prior knowledge, obtained legally, of the matters contained within the NDA - or if the contents are publically available - the signatory cannot be held liable for dispersing the material. Similarly, if the materials are subject to a subpoena or a court order, this would override the contract.

The NDA should have a clause that forces the signing party to return or destroy the confidential information where the project or assignment is abandoned or when they no longer need access to the information.

Breach of the NDA is a serious offense – when this occurs the information owner can apply to court to have an injunction put in place to stop future breaches – Often it is too late at this stage as the damage has already been done. A second option here is to sue the party at fault for damages suffered by the breach. The consequences of breaching the NDA should be set out in the NDA and should include loss of profit as well as loss of reputation and costs and expenses caused by the breach. It is important to remember that Court proceedings can be a long and arduous process.

NDA

It can be extremely difficult to prove that an NDA has been breached but if a breach is proven, this can provide the basis for a claim. Given that it is not always possible to prove that an NDA has been breached some people do not rate them – however, at the very least the NDA holds some value in that it clearly sets out in writing what is expected of the parties to avoid any ambiguity and NDAs also serve as a reminder of the confidential nature of the information and act as a deterrent.

 

GUIDE TO CONTRACTS OF EMPLOYMENT
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Employer Responsibilities when it comes to 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.

Contract of Employment

 

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. The contract should explain the relationship between the employer and employee and should not leave any room for misinterpretation or confusion.

A contract outlines the requirements of the position and conditions the person must work against. 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.

Having a contract in place will offer protection to the company in the event of a dispute or issue arising. This document will safeguard the company in the event of employee litigation or labour court hearings.

 

Contracts

Items that must be included in the written terms of employment are:

•Full name of employer

•Full name of employee

•The address of the employer

•The place of work (if there is no permanent place of work, a statement specifying that the employee is required or permitted to work at various places)

•Appointment/job role – The title or description of the job or the nature of the work for which the employee is employed

•The date of commencement of the contract

•If the contract is temporary, the expected duration of employment

•If the contract is for a fixed-term, the date on which the contract expires; if the contract is for a fixed purpose, then the details of the occurrence of that specific purpose

•The rate of pay, the method of calculation and the frequency of payment (this clause should also include provisions on any permissible deductions in accordance with the Payment of Wages Act, 1991

•The period of notice required from each party to terminate the contract

•The terms and conditions applicable to sick pay, if any

•The terms and conditions applicable to pension schemes, if any

•The terms and conditions relating to paid leave if any

•The terms or conditions relating to hours of work, including overtime

•Reference should be made to any collective agreement affecting the terms of the contract, whether or not the employer is a party to the agreement, including information about the institutions or organisations which drew up any Collective Agreement which affects the terms of the contract to which the employer is not a party.

 

 

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

 Contracts

 

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

GUIDE TO CONTRACTS OF EMPLOYMENT

 

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The Significance of having an Employee Handbook

An Employee Handbook, often referred to as the employee manual, is a book/document containing information about the company and its policies and procedures. It is given to employees by the employer – typically when they first join the organisation.

Employee Handbook
This manual is an excellent place to compile all important information pertaining to the company rules and regulations. It can provide useful details for new staff during the induction process and can be a good reference point for existing employees. An employee handbook gives clarity to employees, advises them in certain situations and creates a culture where problems are addressed in a consistent manner.

An employee handbook communicates all of your workplace and HR policies and protects a business from expensive disputes with employees. The National Employment Rights Authority (NERA) aims to achieve a national culture of employment rights compliance. If a NERA inspector visits your workplace they may ask to see the company handbook to determine whether or not the company has appropriate policies and procedures in place and that it adopts the appropriate measures when various workplace scenarios arise.

Employee Handbook

Examples of some of the items that should be incorporated in an employee handbook are as follows:

•Annual Leave Entitlements

•Maternity Leave

•Paternity Leave

•Adoptive Leave

•Parental Leave

•Carer’s Leave

•Compassionate Leave

•Jury Leave

•Employment / Career Break

•Induction

•Performance Management

•Probation

•Grievance Procedures

•Disciplinary Procedures

•Bullying & Harassment

•Drugs and Alcohol Policies / Misuse of Substances / Testing for Intoxicants

•Dress Code, Uniforms, Personal Grooming and Hygiene

•Office Phone and Mobile Phone Use

•Internet, Email and Social Media Use in the Workplace

•Breaks and Rest Periods

•Sick Leave / Sick Pay

•Punctuality / Timekeeping

•Unauthorised Absence

•Clock-In and Clock-Out

•Vehicles and Company Property

•Use of Company Property

•Confidentiality

•Right to Search

•Copyright

•Ethics and Conduct

•Retirement

•Time-off-in-Lieu

•Flexitime

•Training & Education Funding / Study Leave

•Use of CCTV

•Garda Clearance / Vetting

 

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Employee dismissed for nonconsensual use of premises awarded €25k

Unfair Dismissal 

A recent Labour Court recommendation where a former employee was awarded €25,000 in compensation for Unfair Dismissal illustrates why employers should make sure to attend any hearings that involve them.

Unfair Dismissal

The case in question concerns a former employee's claim that he was Unfairly Dismissed after he used the Company premises without the permission of his employer.

In accordance with section 20(1) of the Industrial Relations Act, 1969, this particular worker referred his case to the Labour Court in June of 2013. He agreed to be bound by the Recommendation of the Labour Court.

A Labour Court hearing took place in February of this year; however, the Company declined to attend the hearing and did not appoint any representation.

This meant that the evidence submitted was solely that of the Claimant. The Court found it 'regrettable' that the employer declined to attend the hearing in any form and found it disappointing that the Company did not avail of its opportunity to present the version of events leading to this dispute from their perspective.

The former employee accepted that he had used the Company's premises without prior consent. However, he did not accept that his behaviour constituted gross misconduct and, consequently, he contested the gravity of the punishment. The employee argued that his dismissal was disproportionate to his actions and maintained that the dismissal was unfair.

Unfair DismissalBased on the uncontested submissions of the employee (the Claimant) the Court was satisfied that the penalty of dismissal was inconsistent with the actions of the employee and the Court determined that a warning would have been more appropriate in the circumstances.

According to the Court, the dismissal was both procedurally and substantially unfair and so the Court recommended that the Company pay compensation in the amount of €25,000 to their former employee in respect of his Unfair Dismissal. This figure was to be in full and final settlement.

Constructive Dismissal

The difference between Constructive and Unfair Dismissal:

Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. Unfair Dismissal is slightly different in that unfair dismissal cases arise when the employee feels as though he or she has been dismissed by the employer on unfair grounds.

Unlike in an unfair dismissals case where dismissal is deemed to be unfair unless proven otherwise and justified by the employer - in constructive dismissal instances the onus is on the employee to prove that their resignation was based on poor employer conduct. Employees claim constructive dismissal/unfair dismissal under the Unfair Dismissals Acts 1977-2007.

If it is found that the employee has been unfairly dismissed he or she could either be awarded compensation for the loss of earnings suffered by the dismissal or could be placed back in their original role – However, this is not common practice due to the expected tension or strained relationship between employer/employee and due to the amount of time that is likely to have passed between the termination of the employment contract and the resolution of the case.

Typically, an employee needs to have accrued 52 weeks’ continuous service with the employer. However, it is crucial for the employer to bear in mind that 52 weeks’ continuous service is not always an essential element. Employees dismissed for trade union membership or because they are pregnant/exercise their right to parental leave, for instance, do not have to have accrued 12 months’ continuous service prior to claiming unfair/constructive dismissal under the Acts.

Labour Court

If the employer acts unreasonably towards the employee or breaches the contract of employment (or demonstrates that they no longer intend to adhere to the terms and conditions outlined therein) then the employer is at risk of a claim under the Acts.

It is important for employers to be aware of everything that occurs in their workplace as even other employees’ behaviour that goes unchecked by the employer could contribute to a constructive dismissal case.

It is also very important for employers to attend Labour Court hearings if they are scheduled so they can give evidence in support of their decision. Also, the Court can look less favourably upon employers who fail to attend and can award higher levels of compensation to the employee.

Unfair Dismissal

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Recent Labour Court Cases