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Employment – Best Practice Legal Responsibilities of Employers Mary Seale.

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Presentation on theme: "Employment – Best Practice Legal Responsibilities of Employers Mary Seale."— Presentation transcript:

1 Employment – Best Practice Legal Responsibilities of Employers Mary Seale

2 Overview Employment relationship Employment status Employment rights Legislation Regulation Summary of the employers obligations Additional considerations for employers Further information

3 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.

4 Employment Relationship The employment relationship is governed by: Legislation (Enacted law) EU law (Directives, Regulations, European Court of Justice) Common law (Judgements of superior courts – High Court / Supreme Court) The Constitution (1937) Employment Contracts Custom and practice Mary Seale

5 Employment Status 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 Self- Employment Status of Individuals

6 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

7 Employment Rights Terms and Conditions Contract of employment 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

8 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

9 Employment Rights Statutory leave entitlements: 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 Force Majeure leave Parental Leave Acts 1998 - 2006 Carers leave Carers Leave Act 2001 Jury leave Juries Act 1976 Annual leave and Public Holidays Organisation of Working Time Act 1997 Health and Safety leave (Applies to pregnant / recently given birth / breastfeeding employees) Safety, Health and Welfare at Work (General Applications) Regulations 2007

10 Employment Rights Statutory Leave Employment rights protected while on leave Not considered a break in service Entitled to return to the same job or suitable alternative employment Cant be dismissed or made redundant Mary Seale

11 Employment Rights Non- Statutory Leave Sick leave Bereavement / Compassionate leave Paternity / marriage leave Career breaks Mary Seale

12 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

13 Employment Legislation Adoptive Leave Acts, 1995 and 2005 Data Protection Acts, 1988 - 2003 Carers 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

14 Employment Legislation 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

15 Employment Legislation 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

16 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 7. Age 8. Disability 9. Membership of the Traveller community Mary Seale

17 Employment Legislation Equal Status Act 2000 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 Mary Seale

18 Employment Legislation Bullying / Harassment 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 individuals 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 Mary Seale

19 Employment Legislation Bullying / Harassment 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 Mary Seale

20 Employment Legislation Maternity Protection Acts 1994 - 2004 Maternity leave entitlement: 26 weeks maternity leave (March 2007) Social welfare maternity benefit 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

21 Employment Legislation Minimum Notice and Terms of Employment Act 1973 Employee must have 13 weeks continuous service 13 weeks – 2 years1 week 2 – 5 years2 weeks 5 – 10 years4 weeks 10 – 15 years6 weeks > 15 years8 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

22 Employment Legislation Organisation of Working Time Act, 1997 Minimum health and safety requirements around the organisation of working time 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

23 Employment Legislation Organisation of Working Time Act, 1997 9 Public holidays: New Years Day St. Patricks Day Easter Monday 1 st Monday - May 1 st Monday – June 1 st Monday – August Last Monday – October Christmas Day St. Stephens Day Public Holidays Bill 2013 – 10 th Public Holiday ??? (Commemoration of the 1916 Rising – 26 th April) Mary Seale

24 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: Paid day off - within 1 month Extra days pay Extra days 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

25 Employment Legislation Parental Leave Acts 1998 – 2006 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 Parents can only transfer the leave if they work for the same employer Mary Seale

26 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: Employees 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

27 Employment Legislation Protection of Employees (Part-Time Work) Act 2001 Part-time employee cant 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

28 Employment Legislation Protection of Employees (Fixed–Term Work) Act 2003 Fixed term contract – ends on an agreed date Specified purpose contract end on completion of a particular project Employee cant 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

29 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

30 Employment Legislation Redundancy Payments Acts 1967 – 2007 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

31 Employment Legislation Safety, Health and Welfare at Work Act 2005 Duties of Employers Ensure a safe place of work Safety Statement and Risk assessment – prevention / elimination / minimisation Emergency plans and procedures Provide training as required Duties of Employees Comply with statutory provisions Co-operate with the employer to ensure safe workplace Duty not to engage in any improper conduct or behaviour Mary Seale

32 Employment Legislation Terms of Employment Information Act, 1994 - 2001 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

33 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

34 Employment Legislation Unfair Dismissals Acts 1997 – 2007 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

35 Employment Legislation Unfair Dismissals Acts 1997 – 2007 Fair reasons for dismissal: 1. Capability, competence, qualifications of employee 2. Conduct of the employee 3. Redundancy 4. Unable to continue to work without contravening a duty imposed by statute (e.g. work permit) Fundamentals of Procedural Fairness Audi alteram partem (both side must be heard) Nemo iudex in sua causa (cant be the judge in your own case / anti-bias) Mary Seale

36 Employment Legislation Unfair Dismissals Acts 1997 – 2007 Constructive Dismissal An employee terminates the contract of employment due to the behaviour of the employer 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

37 Regulation 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) Minister for Jobs, Enterprise and Innovation To announce legislative provision for a new work place relations service in 2013 Single point of contact

38 Employers 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

39 Employers Obligations - Summary To: Create a safe environment Have an up to date working knowledge of employment practice and the relevant legislation Evaluate the implications for the organisation Develop policies and procedures - communicate acceptable / unacceptable behaviour and promote best practice Actively support / enable their implementation Respond to concerns and deal with any issues raised Exhaust internal grievance / disciplinary procedures Mary Seale

40 Additional Considerations 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

41 Further Information Department of Jobs, Enterprise and Innovation National Employment Rights Authority (NERA) Citizens Information Health and Safety Authority Mary Seale

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