How to deal with a Grievance that is received when you are also dealing with an unrelated Disciplinary matter

Question: What do you do where you receive a grievance during disciplinary proceedings? The matters are not related in substance. The allegations are serious enough where gross dismissal is a possible outcome. If allegations are found to be such that warrant summary dismissal, would you still investigate grievance? And would you do so during the disciplinary proceedings or after?

Answer:  There is no straight forward answer.  There are lots of possible combinations. Subject to practicalities, go through both processes in parallel as quickly as possible.  I don’t believe either should be put on hold; that is if the subject matter is unrelated.

If you decide to run the two procedures concurrently it is advisable to have separate Chair / HR.  For many smaller companies this would cause operational strain.  If this is the case, I propose you deal the grievance case after you conclude with the disciplinary and appeal process, and commit to following through on due process.

If a dismissal was enacted before the unrelated grievance, it would still be in your interest to hear the grievance, if the employee still wanted to pursue it, as it may reveal issues internally that need addressing, or at worse some unrelated bullying or harassment.

Where in doubt, call Mary on 086 8225448 to discuss through your situation and get some advice.  All situations are different and need to be handled accordingly.

Retirement – Dealing with the retirement age challenge

In many countries, there is increasing pressure on employers to put in place more flexible retirement policies. This has been mainly triggered by developments in social policy, increases in state pension age (with the resulting income gap) and the potential shortfalls in occupational pension provision. These factors are leading to a greater number of requests from employees to continue working beyond their contractual retirement age and employers having to respond to these challenges.

It is important that employers review their retirement age policy to ensure that they are well positioned to deal with any challenges from employees and changes in legislation. Any retirement age policy should ideally fit in with:

  • The new statutory framework and age-discrimination legislation
  • The needs of the employer’s business in the areas of career progression, succession planning and productivity
  • Retirement income adequacy for retiring employees taking account of Company and State pensions

Employers often think that employees will have to retire when they reach the defined Normal Retirement Age under their occupational pension scheme. However this is not the case. The majority of pension schemes provide flexibility for benefits to be taken before or after Normal Retirement Age and it is essential to look more broadly at what has been communicated about retirement age within employment contracts and within employment policies that have been implemented in the past.

The new statutory framework introduced in 2016 and case law emanating from Irish courts and tribunals has made it clear that the setting of a compulsory retirement age must be objectively justified by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. One of the consequences of the new law is that if fixed term contracts are offered post retirement, the employer will have to demonstrate evidence of objective justification for the termination of employment at the point of expiry of the fixed term contract.
Where changes are made, particular care needs to be exercised when amending the terms of pension and risk benefit plans including:

  • Reviewing the funding and cost implications of altering retirement age in defined benefit plans
  • Trying to introduce retirement flexibility while still operating within the Revenue Commissioner’s restrictive rules in terms of pension access.
  • Considering how to deal with the potential gap between the company’s retirement age and the new State pension age (which is gradually phasing to age 68).
  • Amending the terms of death and disability plans with insurers to reflect new retirement policies.

Employers should be cautious in how they approach the retirement age issue

There are many pitfalls for employers in trying to deal with retirement age and it can be a very sensitive issue for employees.

Employers need to:

  • Engage with employees as they reach the retirement window and ensure that contracts of employment specify a retirement age
  • Have an “objective justification” for any defined specific retirement age. Reasons which have been accepted by the courts in the past include succession planning, and the promotion of intergenerational fairness
  • Reserve the right to vary and review the retirement age as the needs of the business evolve and develop
  • Be careful in setting precedents where employees are allowed to work beyond a set retirement age (even if it involves offering a fixed term contract). Such practices can make it more difficult for employers to enforce their set retirement age in other cases.

Article provided by Willis Towers Watson

Contracts without Specific Working Hours (Zero-Hours Contracts)

Do you know what a zero-hours contract is?

A zero hours contract of employment is a type of employment contract where the employee is available for work but does not have specified hours of work. If you have a zero-hours contract this means there is a formal arrangement that you are required to be available for a certain number of hours per week, or when required, or a combination of both. Employees on zero-hours contracts are protected by the Organisation of Working Time Act 1997 but this does not apply to casual employment.

The Act requires that an employee under a zero-hours contract who works less than 25% of their hours in any week should be compensated. The level of compensation depends on whether the employee got any work or none at all. If the employee got no work, then the compensation should be either for 25% of the possible available hours or for 15 hours, whichever is less. If the employee got some work, they should be compensated to bring them up to 25% of the possible available.

If you use these type of contracts ensure you are being fair to your employee!!

For more information, contract mary on 086 8225448

Common Areas of Complaints Employees Claim

The most common complaints that employees take claims for are:

unfair dismissal

  • Unfair dismissal (including constructive dismissal)
  • Redundancy claims-not being paid for redundancy or being unfairly selected for redundancy
  • No statement of terms of employment/no contract
  • Non-payment of wages-this includes unlawful deductions from your wages and late or non-payment
  • Breaches of working time legislation and not giving the proper, or any, rest breaks, or the correct annual leave/holidays
  • Not giving the proper notice when terminating the employment
  • Being bullied and/or harassed in the workplace-either by the employer or fellow employees
  • Being sexually harassed at work- employees are entitled to protection not just from the employer and employees but customers/clients too
  • Changes to the employment contract without employees consent
  • Reductions in wages or hours of work without employees consent
  • Breaches of the data protection rights in relation to employees personal data
  • Refusal of statutory leave entitlement
  • Failure to give a contract of indefinite duration when an employee is entitled to one after 2 or more fixed term contracts
  • Failure to provide a safe place or method of work in breach of health and safety obligations
  • Ignoring an employee’s rights and entitlements under TUPE (transfer of undertakings) legislation
  • Unfair disciplinary procedures and warnings on individual’s employment record
  • Treating part-time employees less favourably than full time employees
  • Asking an employee to work longer hours than is permitted
  • Not giving employee’s entitlements to maternity and/or parental leave and/or force majeure leave and/or adoptive leave
  • Failing to deal properly and fairly when an employee suffers a personal injury at work
  • Treating an employee unfairly when they are sick

If you are worried about successful claims against you or if you want to ensure that you have your house in order, and have a HR Audit carried out, please call Mary on 086 8225448 or email mryan@righthandhr.ieSituations can easily develop into costly messes rather than being nipped in the bud.

Seven Issues Employers will need to Know in 2016

Image result for employment legislation

The last 12 to 18 months has been a whirlwind for employers in Ireland, with change in respect of employment law and employment rights over this period on a scale not seen since the influx of employment legislation between 1997 and 2003.

  • National Minimum Wage: it was announced in the Budget that the proposed increase of the national minimum wage from the Low Pay Commission will be formally introduced on January 1, 2016. Employers are advised to review and revise their budgets for the new calendar year, particularly in light of the changes to PRSI that will also be introduced.
  • Workplace Relations Reform: any employer that has been faced with an employment tribunal hearing in the past may well be aware of how cumbersome the process was. This was due to fact that there were four different tribunal bodies (namely the LRC, EAT, Equality Tribunal, and Labour Court) and one employee issue could very well result in an employer having to attend four separate tribunals. However, a new streamlined system was introduced on October 1 this year whereby all claims will initially be heard at the new Workplace Relations Commission with all appeals then moving to the Labour Court.
  • Workplace Inspections: Under the Workplace Relations reform, workplace inspections previously carried out by NERA will now be conducted by the WRC. Importantly, the WRC Inspectors now have the authority to issue employers with fixed payment notices of up to €2,000 should that employer have failed to comply with rules in respect of collective redundancy consultation, the issuing of payslips to employees, or the issuing to an employee of a statement of their average hourly pay in accordance with minimum wage rules.
  • Annual Leave Accrual: New rules were introduced on August 1 last whereby employees will now accrue annual leave whilst on a period of certified sick leave. Given the increase to the national minimum wage, this development will also carry any additional cost for employers.
  • Collective Bargaining: Collective bargaining legislation was introduced on 01st August 2015 which provides employees with additional bargaining rights, particularly in respect of the lodging and enforceability of trade dispute claims.
  • JLCs/EROs/REAs: Whilst this may not apply to all employers, those employers in industries previously governed by EROs or REAs are advised to keep abreast of changes in this area. Recent legislation has meant that new EROs and REAs can now be drafted and introduced. Indeed, new EROs have been in effect in the Security and Contract Cleaning industries since 01st October 2015 and it has been reported that the Agricultural industry is quite advanced in negotiations for an ERO in that industry also.
  • Travel Time as Working Time: A recent decision from the Court of Justice of the European Union found that where an employee does not work from a central office (ie, field-based staff) that their commute to their first appointment and their commute home from their last appointment ought to be deemed ‘working time’. While this decision applies automatically in the public sector, it is as yet unclear how the Irish tribunals will apply this decision to employers in the private sector in light of current Irish legislation.

Contact Mary on 086 8225448 or mryan@righthandhr.ie for support.

Source:  Irish Independent  – Business  Section Thursday 10th December 2015

Short-time and Lay off – What is the Difference

short-time.1

I have been getting a number of queries as to what is the difference between a lay-off and Short-time hours.

A lay-off or a short-time hours situation arises when an employer decides that, due to a temporary downturn in business, it is necessary to reduce costs in the short-term, until business increases again.

Lay-off is when the services of an employee are not required because the employer is temporarily short of the type of work carried out by that employee. The period during which the employee is absent from work for this reason is regarded as a lay-off. The employer should give as much notice as is possible beforehand and clearly indicate that the lay-off and lack of work is temporary. Use the  RP9 form which  is available on-line.

Short-time is when an employee is regarded as being on short-time for any week in which he or she works less than one half of his or her normal working hours because the work he or she was employed to do has diminished. An employer ought to give such notice as is possible and clearly indicate to the employee that the short-time is temporary.  Again use the RP9 form.1

In both cases, the key element is that the employer expects this to be a short-term arrangement.

It is important to note that both of the above temporary solutions can only be implemented if this has been agreed with employees as part of the terms and conditions of employment within their contract of employment or the employees’ handbook. If this is not part of the employees’ terms and conditions of employment, the employer will have to agree with the employees that this is a measure that they are willing to engage in. It must also be clearly stated, in writing, that time spent on short time or lay off will not be paid.

This information is supplied by Right Hand HR.  and we would be happy to support you with further information on this process.