Mary Seale

Report
Employment – Best Practice
Legal Responsibilities of Employers
Mary Seale
Overview
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Employment relationship
Employment status
Employment rights
Legislation
Regulation
Summary of the employer’s obligations
Additional considerations for employers
Further information
Employment Relationship
Employment
Is a contract between two parties one being the employer the
other being the employee.
Contract of Employment
 An agreement between two parties that creates legally
enforceable obligations i.e. legally binding on both parties
 The contract lays down the agreed terms and conditions of the
employment relationship
 Expressed and implied terms
 Terms of Employment (Information) Acts 1994 to 2001 - an
employer must provide an employee with a written statement of
the terms and conditions governing his / her employment.
Employment Relationship
The employment relationship is governed by:
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Legislation
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EU law
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Common law
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The Constitution (1937)
Employment Contracts
Custom and practice
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(Enacted law)
(Directives, Regulations, European Court of Justice)
(Judgements of superior courts – High Court / Supreme Court)
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Employment Status
www.revenue.ie
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Employment (contract of service) or self employment
(contract for service) status?
Control test
Integration test
Enterprise (financial risk) test
Multiple test
Code of Practice for Determining Employmet of SelfEmployment Status of Individuals
Employment Rights
The rights of employees originate from three different sources:
1. Employment law
Constitution
EU Law
Statute
Common Law
2. Codes of Practice
3. Collective Bargaining Process
Employment Rights
Terms and Conditions
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Contract of employment
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Employee Handbook (referenced throughout the contract)
(a) Conditions of employment
(b) Leave
(c) Compensation and benefits
(d) Environmental health and safety
(e) Performance management
(f) Company policies and procedures
(g) Information technology
Employment Rights - Overview
The right to:
 A written statement of terms and conditions
 Receive a written statement of pay
 A minimum wage (€ 8.65)
 A maximum working week of 48 hours
 Unpaid breaks during working hours
 Leave from work
 Equal treatment
 Equal pay for like work
 A safe place of work
 Receive a minimum amount of notice before dismissal and to
bring an unfair dismissal claim
 Join a trade union and seek redress for breach of employment
rights
Employment Rights
Statutory leave entitlements:
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Maternity leave Maternity Protection Acts 1994 – 2004
Adoptive leave Adoptive Leave Act 1995 - 2005
Parental leave Parental Leave Acts 1998 – 2006
March 2013: European Union Regulations. Entitlement rose from 14 to 18 weeks
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Force Majeure leave Parental Leave Acts 1998 - 2006
Carer’s leave Carer’s Leave Act 2001
Jury leave Juries Act 1976
Annual leave and Public Holidays
Organisation of Working Time Act 1997
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Health and Safety leave
(Applies to pregnant / recently given birth / breastfeeding employees)
Safety, Health and Welfare at Work (General Applications) Regulations 2007
Employment Rights
Statutory Leave
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Employment rights protected while on leave
Not considered a break in service
Entitled to return to the same job or suitable alternative
employment
Can’t be dismissed or made redundant
Mary Seale
Employment Rights
Non- Statutory Leave
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Sick leave
Bereavement / Compassionate leave
Paternity / marriage leave
Career breaks
Mary Seale
Employment Rights
Ireland ranks lowest in the
former EU 15 for the number
of days leave entitlement with
29 days of combined annual
and public holiday leave.
Sweden 42 days
Germany 40 days
Italy 39 days.
European Foundation for the
Improvement of Living and
Working Conditions
EU 15
Average of 35.6 days of
combined leave
Mary Seale
Employment Legislation
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Adoptive Leave Acts, 1995 and 2005
Data Protection Acts, 1988 - 2003
Carer’s Leave Act, 2001
Competition Acts, 1991 – 1996
Contractual Obligations (Applicable Law) Act, 1981
Electronic Commerce Act, 2000
Employment Equality Acts, 1998 and 2004
Employment Permits Acts, 2003 and 2006
Equal Status Acts, 2000 and 2004
European Communities (Safeguarding of Employees’ Rights on
Transfer of Undertakings) Regulations, 1980
European Communities (Protection of Workers – Exposure to
Noise) Regulations, 1990
Fire Services Act, 1981
Freedom of Information Act, 1998
Employment Legislation
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Industrial Relations Act, 1990
Industrial Relations (Amendment) Act, 2001
Industrial Relations (Miscellaneous Provisions) Act, 2004
Juries Act, 1976
Maternity Protection Acts, 1994 - 2004
Minimum Notice and Terms of Employment Act, 1973 - 2001
National Minimum Wage Act, 2000
Organisation of Working Time Act, 1997
Organisation of Working Time (Records) (Prescribed Form and
Exemptions) Regulations, 2001
Parental Leave Acts, 1998 - 2006
Payment of Wages Act, 1991
Pensions (Amendment) Act, 2002 (PRSAs)
Protection of Employment Act, 1977
Employment Legislation
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Protection of Employees (Fixed–Term Work) Act, 2003
Protection of Employees (Part-Time Work) Act, 2001
Protection of Young Persons (Employment) Act, 1996
Public Health (Tobacco) Amendment Act, 2004
Redundancy Payments Act, 1967 - 2003
Safety in Industry Acts, 1955 – 1980
Safety, Health and Welfare at Work Act, 1989 and 2005
Terms of Employment (Information) Act, 1994 – 2001
Tobacco Smoking (Prohibition) Regulations, 2003
Trade Union Acts, 1913 - 1976
Transnational Information and Consultation of Employees Act, 1996
Unfair Dismissals Acts, 1977- 2001
Worker Participation (State Enterprises) Acts, 1977 and 1988 - 2001
Employment Legislation
Employment Equality Acts 1998 – 2004
Outlaws discrimination in employment, access to employment or
conditions of employment, on any of the 9 grounds:
1.
Gender
2.
Race
3.
Marital status
4.
Family status
5.
Sexual orientation
6.
Religion
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Age
8.
Disability
9.
Membership of the Traveller community
Mary Seale
Employment Legislation
Equal Status Act 2000
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Gives protection against discrimination in non-workplace
environments
Compliments the Employment Equality Acts
Covers education, the provision of goods, services and
accommodation and disposal of property
Legislates for the prevention of harassment or sexual
harassment outside of the workplace
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Employment Legislation
Bullying / Harassment
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Significant issue in the workplace
No statutory definition
…..repeated inappropriate behaviour, direct or indirect, whether
verbal, physical or otherwise, conducted by one or more persons
against another or others, at the place of work and/or in the
course of employment (vicarious liability), which would
reasonable be regarded as undermining the individual’s right to
dignity at work. An isolated incident in this definition may be an
affront to dignity at work but is not considered to be bullying.
HSA Code of Practice
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Employment Legislation
Bullying / Harassment
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Dealt with under Safety, Health and Welfare at Work Act,
2005
Code of Practice, 2007 – Health and Safety Authority Code
of Practice for Employers and Employees on the Prevention
and Resolution of Workplace Bullying (admissible in
evidence in the event of criminal proceedings)
Safety Statement – Hazard in the work place => Bullying
Prevention Policy and Procedures
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Employment Legislation
Maternity Protection Acts 1994 - 2004
Maternity leave entitlement:
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26 weeks maternity leave (March 2007)
Social welfare maternity benefit
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16 weeks additional unpaid leave
No obligation on employer to make any payment
Commences - 2 weeks before expected week of confinement
Employee must give 4 weeks notice to employer
(maternity leave / additional maternity leave / return to work)
Mary Seale
Employment Legislation
Minimum Notice and Terms of Employment Act 1973
Employee must have 13 weeks continuous service
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13 weeks – 2 years
2 – 5 years
5 – 10 years
10 – 15 years
> 15 years
1 week
2 weeks
4 weeks
6 weeks
8 weeks
An employee is obliged to give 1 weeks notice
Notice of termination is probably one of the most important
provisions in a Contract of Employment
Mary Seale
Employment Legislation
Organisation of Working Time Act, 1997
Minimum health and safety requirements around the organisation of
working time
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48 hours per week – averaged over 4 month period
Annual leave – min. 20 days or 8% of hours worked
Public holidays – (40 hours in previous 5 weeks)
Breaks: 15 mins after 4.5 hours / 30 mins after 6 hours
Records must be kept for 3 years
Mary Seale
Employment Legislation
Organisation of Working Time Act, 1997
9 Public holidays:
 New Years Day
 St. Patricks Day
 Easter Monday
 1st Monday - May
 1st Monday – June
 1st Monday – August
 Last Monday – October
 Christmas Day
 St. Stephen’s Day
Public Holidays Bill 2013 – 10th Public Holiday ???
(Commemoration of the 1916 Rising – 26th April)
Mary Seale
Employment Legislation
Organisation of Working Time Act, 1997
If a Public Holiday falls on a day on which an employee works they are
entitled to:
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Paid day off - within 1 month
Extra day’s pay
Extra day’s annual leave
If it falls on a day on which the person does not normally work –
entitlement is to 1/5 of normal weekly wage for that day
Mary Seale
Employment Legislation
Parental Leave Acts 1998 – 2006
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Unpaid leave – child up to 8 years (16yrs disabled children)
Employee – 1 years continuous service to avail of it
18 weeks per child – continuous block / separate blocks
EU Directive March 2013 – increased from 14 to 18 weeks
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Parents can only transfer the leave if they work for the
same employer
Mary Seale
Employment Legislation
Parental Leave Acts 1998 – 2006
Force Majeure Leave
Leave with pay for urgent family reasons, owing to an injury or illness of
a person where the immediate presence of the employee is
indispensable:
 Employee’s child
 Co-habiting spouse or partner
 Brother, sister, parent , grand-parent
 Person to whom the employee is in ‘loco parentis’
 Person who resides with the employee in a relationship of domestic
dependency
Entitlement: 3 days in any period of 12 consecutive months or
5 days in 36 consecutive months (Urgent / immediate / indispensable)
Mary Seale
Employment Legislation
Protection of Employees (Part-Time Work) Act 2001
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Part-time employee can’t be treated less favourably than a
'comparable’ full time employee
Entitlements should be in proportion to those of a full-time
employee – ‘pro rata’
Complaints to Rights Commissioner within 6 months
Mary Seale
Employment Legislation
Protection of Employees (Fixed–Term Work) Act 2003
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Fixed term contract – ends on an agreed date
Specified purpose contract end on completion of a particular
project
Employee can’t be treated less favourably (‘comparable’
permanent employee)
Requires a clause in the employment contract re Unfair
Dismissals (next slide)
2 or more continuous fixed term contracts – duration may not
exceed 4 years
Mary Seale
Employment Legislation
Protection of Employees (Fixed –Term Work) Act 2003
‘Provisions of the Unfair Dismissals Acts 1997 – 2007 will not
apply to termination of this contract due only to expiration of
the fixed term / completion of the specific purpose’
Mary Seale
Employment Legislation
Redundancy Payments Acts 1967 – 2007
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Entitlement requires continuous employment for 104 weeks
2 weeks for every year of service + a week
Ceiling of €600 per week (statutory) - € 31,200 per year
Statutory payment – tax free
Employer was entitled to 60% rebate from the state – no
statutory redundancy employer rebate since January 2013
(Department of Jobs, Enterprise and Innovation)
Position is made redundant – not the person
(Impersonality and Change)
Mary Seale
Employment Legislation
Safety, Health and Welfare at Work Act 2005
Duties of Employers
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Ensure a safe place of work
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Safety Statement and Risk assessment – prevention / elimination /
minimisation
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Emergency plans and procedures
Provide training as required
Duties of Employees
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Comply with statutory provisions
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Co-operate with the employer to ensure safe workplace
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Duty not to engage in any improper conduct or behaviour
Mary Seale
Employment Legislation
Terms of Employment Information Act, 1994 - 2001
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Employees entitled to a written statement of terms and
conditions of employment within two months
Employer must notify the employee of any changes
Right of complaint to a Rights Commissioner
Mary Seale
Employment Legislation
Unfair Dismissals Acts 1997 – 2007
Prior to the passing of this Act, employees had virtually no
protection against arbitrary dismissal (wrongful dismissal through
courts).
The Act provides protection by setting out criteria by which
dismissals are deemed to be fair or unfair and provides redress
for an employee whose dismissal is found to be unfair
(re-instatement /re-engagement / compensation – max of 104
weeks remuneration)
Mary Seale
Employment Legislation
Unfair Dismissals Acts 1997 – 2007
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A dismissal is automatically deemed unfair – burden of proof
falls to the employer
Employee must have 12 months continuous service
(exceptions)
Complaint lodged to Rights Commissioner within 6 months
Successful claim – re-instatement; re-engagement;
compensation (up to 2 years pay)
Mary Seale
Employment Legislation
Unfair Dismissals Acts 1997 – 2007
Fair reasons for dismissal:
1.
Capability, competence, qualifications of employee
2.
Conduct of the employee
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Redundancy
4.
Unable to continue to work without contravening a duty
imposed by statute (e.g. work permit)
Fundamentals of Procedural Fairness
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Audi alteram partem (both side must be heard)
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Nemo iudex in sua causa (can’t be the judge in your own case / anti-bias)
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Employment Legislation
Unfair Dismissals Acts 1997 – 2007
Constructive Dismissal
An employee terminates the contract of employment due to the
behaviour of the employer
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Burden of proof shifts to employee
Exhausted internal grievance procedures?
Concerns brought to the employer?
Employer given an opportunity to address the issue(s)?
Conduct complained of – did it warrant resignation?
Mary Seale
Regulation
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National Employment Rights Authority (NERA)
Social Partnership Agreement ‘Towards 2016’
Statutory footing
Aims to foster a culture of compliance with employment rights legislation:
Information on rights;
Inspection (90 inspectors);
Enforcement
Prosecution
Protection of Young Persons
Works closely with Revenue and the Department of Social protection (JIUs)
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Minister for Jobs, Enterprise and Innovation
To announce legislative provision for a new work place relations service in 2013
Single point of contact
Employer’s Obligations
Summary – NERA
Ensure:
1.
Written statement of terms and conditions of
employment
2.
Written statement of pay or payslip
3.
Minimum wage (€8.56)
4.
Maximum working week
5.
Unpaid breaks are provided during working hours
6.
Annual leave from work
7.
Minimum notice before termination of work
8.
Maintenance of records – employees and entitlements
Mary Seale
Employer’s Obligations - Summary
To:
 Create a safe environment
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Have an ‘up to date’ working knowledge of employment
practice and the relevant legislation
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Evaluate the implications for the organisation
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Develop policies and procedures - communicate
acceptable / unacceptable behaviour and promote best
practice
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Actively support / enable their implementation
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Respond to concerns and deal with any issues raised
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Exhaust internal grievance / disciplinary procedures
Mary Seale
Additional Considerations
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Children First – statutory footing
Records and data protection
Confidentiality
Performance management system / staff support and
supervision
Range of organisational policies and procedures to
ensure best practice
Child and Family Agency
Further Information
Department of Jobs, Enterprise and Innovation
www.djei.ie
National Employment Rights Authority (NERA)
www.employmentrights.ie
Citizens Information www.citizensinformation.ie
Health and Safety Authority www.hsa.ie
Mary Seale

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