“ Employment Law ” Delivered by: Elaine Rossiter, HR Consultant

1. National Meeting Hodson Bay Hotel, Athlone, Tuesday 9th June 2009 2:30-5:00p.m. “Employment Law” Delivered by: Elaine Rossiter, HR Consultant

2. This session will look at some of the practical employment issues that managers of FRC need toconsider in the ever changing economic environment. • Key session topics include: • o Overview of Employment Law • o Contracts of Employment • o Termination of Contract • o Fair and Unfair Dismissals • o Grievance and Disciplinary Procedures

3. Employment Law Overview Sources of Irish Employment Law Contracts of employment Fixed Contract Employees Forms of Statutory Leave Hours of Work/Working Time Act New Staff and the UD Act Redundancy Guidelines Overview of minimum policies required by statute

4. Employment Contract Staff Handbook, Policies, Procedures Irish Constitution 1937 Irish & EU Legislation Irish and EU case law Collective Agreements Registered Employment Agreement Social Partnership Agreements Custom and Practice International law Sources of Irish Employment Law

5. Employment Contracts & Staff Handbooks • Verbal • Written • Express Terms • Implied Terms • By the Constitution • By legalisation • By custom and practice • By the courts

6. Code of Practice on Harassment & Sexual Harassment, Equality Authority. www.equality.ie Code of Practice on the Preventing of Workplace Bullying. Health & Safety Authority. www.hsa.ie Code of Practice Detailing Procedures for Addressing Bullying in the workplace. www.lrc.ie Code of Practice on Access to Part Time Working 2006. www.lrc.ie Irish Law and EU Legislation -Codes of Practice

7. Contracts of Employment No legal requirement to provide contract of employment Terms of Employment (Information) Act, 1994 Provide main terms and conditions of employment In writing and signed by employer Within 30 days of start Not a contract but a statement Contracts of employment are: More detailed and signed by both parties Contain legally enforceable clauses Which is better depends on circumstances

8. Contracts of Employment Normally any Court / Hearing will ask these three key questions: What does the person’s contract say? What does the law say? What is happening in reality? The critical question is the third one as this forms “custom and practice”

9. Contracts of Employment Two principle forms of contracts Contract of Employment IN Contract for Services OUT

10. Contracts of Employment Contract of Services Under this form of contract a person is engaged directly as an employee of the organisation. Contract for Services Under this contract the work is ‘Contracted Out’ to a service provider (e.g. Agency Workers, Cleaning Services)

11. Contracts of Employment

12. Contracts of Employment Types of Employment Contracts Permanent Contract – ‘‘Permanent Employee” means an employee who is not a fixed-term employee. Fixed Contract Temporary Contract – Short-term need Fixed Term Contract – Project / Task focus Specific Purpose Contract – Specific need or task.

13. Contracts of Employment Protection of Employees (Fixed Term Work) Act, 2003 Provides improved rights to staff on Fixed Term contracts Same terms and conditions Permanent after 4 years Organisations need to consider why they use contract staff Short term need within existing role Skill set not available in organisation Project that is time bound No longer headcount avoidance

14. Contracts of Employment Cannot use FT Contracts to avoid making staff permanent Same terms and conditions - unless objective reason Cannot continuously roll over on successive contracts After 3 years of successive F-T contracts Only 1 more, no more than12 months Must justify reason for not making permanent Must justify reason for non-renewal Staff can be deemed to be on contract of indefinite duration Can still provide 5 year FT contract Must be only 1 contract

15. Contracts of Employment Part-Time/Agency Contracts… • Part-time workers - staff whose normal hours of work are less than the normal hours of work of ‘comparable full-time workers’ • Agency workers are covered by employment legislation and the agency is considered the employer Employers should give consideration to requests for part-time worker

16. Contracts of Employment • Recommended good practice: • Contracts in writing, signed prior to commencement • Terms stated clearly and precisely • Specific reference to other documents such as staff handbooks, collective agreements • Ensure employee has received all documentation and is bound by it.

17. Wages • Every employee is entitled to a confidential written statement of gross pay, deductions (e.g. PAYE and PRSI) and net pay • Employers are obliged to facilitate the employee paying into a PRSA • The Minimum Wage is €8.65 (since July 07)

18. Statutory Leave Annual Leave Maternity Leave Adoptive Leave Parental Parental Leave Force Majeure Leave Carers Leave

19. Statutory Leave

20. Statutory Leave Organisation of Working Time Act 1997 All employees who have worked 1,365 hours are entitled to a paid leave entitlement of 4 weeks Other employees are entitled to 8% of hours worked subject to a maximum of 4 weeks 1/3 of week where employee has worked 117 hours All employees have an entitlement to public holidays or one of the following: A paid day off within the month An additional annual leave day An additional day’s pay Other forms of non-statutory leave There is no legislative right to paid sick leave There is no legislative right to compassionate leave

21. Hours of Work The maximum AVERAGE working week should not exceed 48 hours This does not mean NEVER exceeding 48 hours in any week Rest periods Employees are entitled to a 15-minute break in a 4.5-hour period or break of 30 minutes in a 6-hour period 11 consecutive hours rest in a 24-hour period 24 hours consecutive rest in any period of 7 days Essential to keep records Onus on employer to prove compliance

22. Redundancy New reality for many companies Important to get it correct 50% increase in cases of Unfair Dismissal Follow some simple guidelines Main form is the RP50 Available from www.entemp.ie

23. Redundancy Important to remember the role is redundant and not the person Company requires fewer employees Work is to be carried out in a different manner Must have 2 years service 2 weeks pay per year plus 1 week lump sum Ceiling of €600 per week Ex-gratia at company discretion

24. Redundancy Selection criteria are critical Last in first out may be discriminatory Consider a range of factors: Service Skills/Qualifications Performance Disciplinary/Attendance record Customer feedback

25. New staff and UD Act Unfair Dismissals Act, 1977 - 2001 Sets out legal framework Statutory Instrument 146/2000 Code of Practice on Grievance and Disciplinary Procedures Sets out how process is applied Must have 1 year’s service Notice counts as service! Maternity, equality and union are covered from Day 1

26. Notice begins after 13 weeks Unless contract allows for greater period Must take care to ensure payment of all notices and leaves Unless case of gross misconduct Should always treat staff as if they can be subject to UD Act Little effort now prevents problem later New staff and UD Act

27. Rules of Natural Justice The right to be fully informed of the allegations being made The right to have his/her case heard The right of reply The right to question and to call witnesses The right of innocence until proven guilty The right to representation The right of appeal Courts will look at application of these irrespective of length of service New staff and UD Act

28. Section 29 Industrial Relations Act Gives right for employee to have case heard Can have less than 12 months service Outcome is only binding on employee Temptation is to ignore proceedings Bad publicity for employer Always should present case Can avoid ruling if dismissal is with cause New staff and UD Act

29. Employment Law Overview - Minimum Policies Disciplinary Grievance Bullying & Harassment Equal Opportunities Data Protection Maternity Leave Parental Leave Adoptive Leave Carer’s Leave Emergency Family Leave Health & Safety

30. Overview of Employment Law Main Learning Points: Legislation is constantly changing Problems will arise Best practice procedures should be in place People Managers must be trained in how to use the law/procedures Taking shortcuts does not work in the long run

31. Termination of Employment(overview) • A contract may specify the amount of notice that the employee is entitled to in the event of being let go • A minimum period of notice applies for employees with 13 weeks service or more…

32. Disciplinary Guidelines

33. Disciplinary Guidelines Unfair Dismissals legislation Procedural fairness Conducting hearings Taking notes

34. Discipline Management

35. What governs dismissal Unfair Dismissals Act, 1977 - 2001 Sets out legal framework Statutory Instrument 146/2000 Code of Practice on Grievance and Disciplinary Procedures Sets out how process is applied

36. Unfair Dismissals Acts, 1977 - 2001 Requirements: 1 years continuous service Notice counts as service Valid and enforceable contract Refer case within 6 months 12 mths exceptional circumstances Rights Commissioner/EAT

37. Unfair Dismissals Acts, 1977 - 2001 Must be valid contract Must be dismissed Employer terminates the contract Temporary contract not renewed Depending on circumstances Employee terminates the contract Entitled to do so or it was reasonable for them to do so Referred to as ‘constructive dismissal’

38. Constructive Dismissal The employer has a duty of care to look after the welfare of workers. • Where this duty is ignored – in the case of bullying and intimidation – then the employer may be liable to a legal action by the employee who has been “hurt”. • Leeson vs Glaxo Wellcome Limited refers to a case where a female employee felt bullied by her new boss and felt she had no option but to leave the employment. She was awarded £22,500 by the Employment Appeals Tribunal who found in her favour.

39. Fair Reasons for Dismissal There must be substantial grounds to justify the dismissal Capability Competence Qualifications Conduct Redundancy Other substantial grounds

40. Unfair Reasons for Dismissal Pregnancy or related matters Religious or political opinions Race or colour Sexual orientation Age Trade Union membership or activity Taking part in a strike or other industrial action Legal proceedings against employer Member of travelling community Exercising rights under certain legislation

41. Fair Procedures Employer may have a substantive case Procedural fairness is also relevant: In deciding fairness of sanction (if fair) In assessing compensation (if unfair)

42. Unfair Dismissals Acts, 1977 - 2001 Remedies Reinstatement ReinengagementOR Compensation Actual and future loss Contribution The 4 week basic award (where no loss exists) Maximum 2 year’s salary Wrongful Dismissal Courts where remedies are higher

43. Principles of Natural Justice If an employer does not comply with fair procedures the dismissal will be found to be unfair despite grounds justifying the dismissal Dismissal is always deemed unfair Up to employer to prove otherwise

44. Principles of Natural Justice Principles of Constitutional/ Natural Justice Right to know full allegations and who is making them Right of reply Right to representation Right to fair, impartial and objective consideration of evidence Right to appeal Common Law rules Implicit in employee legislation

45. Implementing a Procedure Starting point of is the introduction of a procedure Staff and managers should be aware and trained in use Ensures disciplinary action is applied fairly and consistently Give copy to employee within 28 days of commencement of employment

46. The Investigation No action taken until employer has investigated issue Nature of issue will determine extent of investigation Nature/extent of investigation will be examined by Tribunal Determine if fair/unfair

47. Taking Disciplinary Action Issue notice of disciplinary hearing Reiterate right of representation Listen – do not interrupt Ensure all evidence is presented Never give the impression that a decision has been made Adjourn to consider all information Impartial objective consideration Disciplinary must be proportionate Keep notes of all meetings Right of appeal

48. Gross Misconduct Can dismiss summarily Skip all stages of procedure No notice period or payment Only after investigation Must be for serious breach of conduct or misbehaviour Must be very careful if using gross misconduct

49. Conclusion Substantial reason justifying disciplinary action Adherence to procedures Principles of natural justice Internal disciplinary Procedure or Code of Practice ‘Reasonable’ employer Last Resort Punishment must fit the crime

50. Essential Policies and Procedure to comply with Legislation • Equal Opportunity Policy • Review recruitment practices • Review interview procedures • Grievance policy • Policy and procedures on HARASSMENT • Anti-Bullying Policy • Performance reviews • Records (onus on proof on employer)