Working from Home – Legal and Contractual Considerations

With working from home being a key means for many workers and organisations to keep going during the coronavirus outbreak, I wanted to remind you of some areas that still need to be considered:

Ireland has moved into 'delay phase' of coronavirus |
  1. Review your homeworking policy. Make sure it addresses how employees will be supervised, how the organisation and line managers will communicate with them and how performance and output will be monitored. The homeworking arrangement may be confirmed by a consent form, detailed homeworking arrangement or by amendments to the employee’s contract.
  2. Confirm employee rights. Homeworkers must be treated the same as office-based staff, with equal access to development and promotion opportunities. Consult the relevant trade union, if any, to ensure equal treatment for these workers. In the current context, it may be prudent to expressly state that any changes are temporary and that the employee will, if applicable, return to office-based working once the situation ends. 
  3. Confirm contact methods and regularity. Advise homeworkers to establish when and how they will have contact with their manager; reporting in at regular times can also help combat isolation and stress. 
  4. Providing equipment. There is no obligation for employers to provide computer or other equipment necessary for working at home, although, given the latest Government advice, employers should do what they can to enable home working. It is prudent to list the equipment that has been supplied in the home working agreement, consent or policy. Remember that provision of equipment could be a reasonable adjustment for some disabled employees and may be the safest option for those with existing health conditions or pregnant employees at this time. 
  5. IT and Broadband. Employers should confirm in the contractual arrangements if the employee is expected to cover the broadband cost (plus heating and lighting) or if the employer will contribute towards these costs and, if so, to what extent. The employer should also confirm any IT support (likely to be remote at this time) and responsibility for repair or replacement if the employee’s equipment is used. 
  6. Think about health and safety obligations. Employers are responsible for an employee’s health, safety and welfare, even when working from home. Employers need to make sure that homeworkers are knowledgeable about health and safety and that they comply with the organisation’s health and safety policy. Employers may remind staff that they should ensure a suitable and safe environment where they can focus on work. Remind employees that they should continue to comply with your sickness absence policy and report their sickness to their line manager when they are sick and unable to work. 
  7. Carry out risk assessment. Employers should usually conduct risk assessments of all the work activities carried out by employees those working from home. However, at this time undertaking physical risk assessments of each employee’s home will not feasible and so employers could use electronic risk assessment questions instead. It is the employee’s responsibility to address any flaws in the home revealed by the assessment. The Health and Safety legislation also puts some responsibility on the home worker to ensure that they and members of the household are not endangered by work activities undertaken at home. 
  8. Review working time and length of period. Will employees need to be available for work during strict office hours or work a specified a set number of hours per day? There may be more flexibility over working hours in a work from home arrangement, but working time regulations should still be complied with, including the working week and daily rest break. Instruct managers to look out for signs of overwork. 
  9. Clarify salary, benefits, insurance, tax. Salary and benefits should obviously remain the same during a period of homeworking, although changes to expenses may be appropriate if normal travel expenses and allowances are no longer needed. Usually it is the employee’s responsibility to check that no issues arise with their mortgage provider, landlord, local authority, Revenue or their home insurer when homeworking. In this unprecedented situation it is hoped that any issues, for example increases in house insurance premiums, would be minimal but it is prudent for employees to check. Employers also need to check that insurance covers business equipment in the homeworker’s premises. 
  10. Data protection. Employers should make sure data protection obligations are maintained and employees using their own computer should still process information in compliance with data protection principles. Employers should remind employees about home security, confidential information, passwords, shredding etc. 
Two more coronavirus cases confirmed in Northern Ireland | Newstalk

Note: many thanks to CIPD Ireland for providing the information

A Number of Leave that employees can apply for

Parents have a right to time off work to look after their children. Parents have several different types of statutory leave entitlements, for example, maternity leaveadoptive leavepaternity leaveparental leave and parent’s leave.

This table explains the differences between the types of leave for parents.

LeaveWho gets it?How long?Is it paid?
Maternity leaveFemale employees26 weeks and up to 16 unpaid weeksYes, Maternity Benefit is paid for 26 weeks
Adoptive leaveAdoptive mothers, men adopting alone24 weeks and up to 16 unpaid weeksYes, Adoptive Benefit is paid for 24 weeks 
Paternity leaveNew parents of children under 6 months of age (but not the mother of the child)2 weeksYes, Paternity Benefit is paid for 2 weeks 
Parental leaveParents and guardians of children under 1222 weeksNo, it’s unpaid 
Parent’s leaveParents of children under 1 year of age (or in first year of adoption2 weeksYes, Parent’s Benefit is paid for 2 weeks 

Minimum Wage

Since 1 February 2020, the national minimum wage is €10.10 per hour, as set out in the National Minimum Wage Order 2020. Wage rates are solely based on age.

The national minimum wage does not stop an employer from offering a higher wage.

What you should know about Redundancies

Do you think you need to make employees redundant? 

Are you wondering whether there is anything you can do to avoid this? 

Want to know what your options are? 

Let’s look at the law surrounding redundancy. 

Firstly, you need to understand that there are two types of redundancy situation recognized in Irish law: 

  • A collective redundancy situation and a non-collective redundancy 

This blog is about non-collective redundancy only. That is, a situation where you, as an individual, are at risk of losing your job by reason of redundancy and it is not a collective redundancy situation. 

What is a redundancy?

A redundancy will exist if the circumstances fall into one of the 5 definitions set out in the Redundancy Payments act 1967. These are: 

  • For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— 
  • ( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or 
  • ( b ) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or 
  • ( c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or 
  • ( d ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or 
  • ( e ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained, 

If your termination falls into one of these categories it is a genuine redundancy. If it does not then it may not be a genuine redundancy, it may be a sham. 

Lay off or Short Time

A lay off or short time might give rise to a right to the employee serving a notice claiming redundancy. However, the employer can serve a counter notice if he believes he will be able to provide work within 4 weeks of receiving the notice from the employee. 

This work must last for at least 13 weeks. 

Notice of Redundancy 

The employee is entitled to at least 2 weeks’ notice of the proposed dismissal (section 17 Redundancy Payments Act 1967). This is a statutory minimum and you are entitled to a greater notice period in accordance with your contract of employment, if it is contained in your contract. 

Where an employer is unable to pay redundancy 

There is a scheme run by the Department of Employment Affairs and Social Protection called the Insolvency Payments Scheme. Provided certain criteria are met an employee may be paid from this fund. 

Disputes about redundancy terminations 

If an employee has any dispute about his/her redundancy they can bring their claim to the Workplace Relations Commission. 

Employer’s conduct during redundancy decision 

The employer is obliged to act reasonably in arriving at the decision to terminate the employment by reason of redundancy. He should have given the employee the opportunity to put forward suggestions to save his job or to do alternative work or suggest ways that the business could be run more efficiently to obviate the need for a redundancy. 

He should also have used some type of objective criteria by which to decide to make one employee redundant as opposed to another. If the employer has a choice between more than one employee, then the choice of who will be terminated must be made fairly. 

The key for the employer is to act fairly and reasonably and look at all options short of redundancy. If he has done this, however, the redundancy decision should be sound and capable of withstanding a claim of unfair dismissal. 

Minimum Wage 2019 and New Zero-Hours Contracts

Since 1 January 2019, under the National Minimum Wage Order 2018, the national minimum wage for an experienced adult employee is €9.80 per hour. An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years over the age of 18


Rates on or after 1 January 2019
Minimum hourly rate of pay % of minimum wage
Experienced adult worker €9.80 100%
Aged under 18 €6.86 70%
First year from date of first employment aged over 18 €7.84 80%
Second year from date of first employment aged over 18 €8.82 90%
Employee aged over 18, in structured training during working hours
1st one-third period €7.35 75%
2nd one-third period €7.84 80%
 3rd one-third period €8.82 90%

Note: each one-third period must be at least one month and no more than one year.

Example 1: John was aged 17 when he started work on 1 January 2015 so he was entitled to 70% of the minimum wage. His 18th birthday was on 1 April 2015 and after that he was entitled to 80% of the minimum wage as he was in his first year of employment after the age of 18. From 1 April 2016, he was entitled to 90% of the minimum wage as he was in his second year of employment since the age of 18. After 1 April 2017 he is entitled to the full minimum wage rate as he is an experienced adult worker for the purposes of the National Minimum Wage Act. (That is, he is not in the first 2 years after the date of first employment over age 18). You can find a definition of an experienced adult worker in this list of frequently asked questions on the national minimum wage.

Example 2: Mary worked for 6 months when she was 17. She went to college and, on 1 October 2015, at the age of 20 she started work. She was entitled to 80% of the minimum wage as she was in her first year of employment. On 1 June 2016 she turned 21 but her rate of pay did not increase as she was still in first year of employment after the age of 18. (Her 6-months’ work when aged 17 is not taken into account.) From 1 October 2016 she was entitled to 90% of the minimum wage as she was in her second year of employment. Mary changed job on 1 December 2016 but she was only entitled to 90% of the minimum wage as she continued to be in her second year of employment. She is not entitled to the full minimum wage rate until 1 October 2017. This is when her second year of employment ends.

Zero-hours Contracts

Anyone who works for an employer for a regular wage or salary automatically has a contract of employment. Contracts should be provided within 5 working days.

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 hours.

For example, if you are required to be available for 20 hours per week, but you got no work, you would be entitled to be compensated for 15 hours or 25% of the 20 hours (that is, 5 hours), whichever is the less. In this case, 5 hours is the lesser amount. If, on the other hand, you got 3 hours’ work out of the 20, you would be entitled to be compensated by 2 hours to bring you up to 25% of the contract hours.

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 for support.

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

Short-time and Lay off – What is the Difference


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.