Mar 2018
2
Bad Weather equals staffing headaches – what can be done?
With the recent bad weather, many businesses across the country have been forced to close or get by with skeleton staff. The question now on most employer’s minds is do they have to pay staff who are unable to come into work, whether because of workplace closure or inability to travel.
Answer
There is no legal obligation on employers to pay their employees if the business was forced to close due to extreme weather conditions or if employees were unable to travel to work due to bad weather. However, it is important to be aware of any custom and practice in the organisation or contractual clause, which may override this position.
The general advice to employers is to be as flexible as possible. The handling of bad weather and travel disruption can be a real opportunity for an employer to boost staff morale and show yourself as an all round fair employer. Possible considerations might include:
- Can you be flexible with regard to working hours or working patterns?
- Is it possible for employees to work from home or even at a different location?
- Would it be possible for the employee to work back the time missed at a later date?
- Rather than deducting pay for time missed you could offer that the employee take annual leave for the time. Whilst offering this as a solution is recommended, enforcing it without the agreement of the employee would not be best practice.
A company policy on absence due to inclement weather should address the situation where employees are unable to attend work, due to weather-related circumstances. Having such a policy should also mean there is much less scope for confusion and disagreement.
An Inclement Weather policy is available within the Optional Sections of the Bright Contracts Handbook.
Jan 2018
12
Is it discrimination to top up maternity pay but not paternity pay?
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child/placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case, a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However, the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
Conclusion
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from the end of March 2018.
To keep up with the latest payroll news, check out our new Bright website. There, you'll be able to register for any of our upcoming payroll webinars and download our payroll guides.
Dec 2017
11
Zero Hour Contracts - New Legislation
A new Bill, the Employment (Miscellaneous Provisions) Bill 2017, was published last week. According to the Employment and Social Protection Minister, Regina Doherty, the new Bill will prohibit zero hour contracts in most circumstances, as well as aiming to tackle problems caused by the increased casualisation of work and to strengthen the regulation of precarious work.
Key elements of the new Bill include:
Employers must give employees basic terms of employment within 5 days.
Within five days of a new employee starting employment, the employer must provide them with five core terms of employment. These 5 terms are:
- The full name of the employer and employee
- The address of the employer
- The expected duration of the contract (where it is a temporary or fixed-term contract)
- The rate or method of calculating pay
- What the employer reasonably expects the normal length of the employee’s working day and week will be.
Employers who fail to provide these basic terms, who deliberately mislead or give false information will be open to prosecution. This is a new offence.
In line with current legislation, the remaining terms of employment will still need to be provided within two months of the employee’s start date.
Zero hour contracts to be Prohibited in most circumstances.
Zero hour contracts will be prohibited in all circumstances except in cases of genuine casual work or where they are essential to allow employers to provide cover in an emergency situation or to cover short-term absences.
New minimum payment to be introduced.
Employees called into work but sent home again without work will now be entitled to a payment. Additionally, if an employee has not worked at all in a week or has worked less than 25% of their contract hours, they will also be entitled to a minimum payment. The payment shall be calculated as the pay that the employee would have receive had they worked the lesser of:
- 15 hours
- 25% of their normal contractual hours
- 25% of the work done for the employer that week
That minimum payment must be three times the National Minimum Wage or the rate set out in any applicable Employment Regulation Order.
Banded Hours
The Bill introduces new rights for new employees whose contract of employment does not reflect the reality of the hours they habitually work. For example, the contract states 15 hours per week where in reality the employee usually works 30 hours per week. After a work period of 18 months, an employee will be able to submit a written request to change their contractual hours. The employees request must be granted within two months, only in exceptional cases will the employer be permitted to refuse the request.
Penalisation of Employees
Employees seeking to invoke their employment rights under the Bill will have strong protections against penalisation. Where an employee successfully makes a complaint to the Workplace Relations Commission, they could be entitled to up to four weeks’ remuneration.
What’s next
The Bill was presented to the Dail on Thursday 7th December 2017, it is hoped that the Bill will be taken at Second Stage early in the New Year.
To book a free online demo of Bright Contracts click here
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Nov 2017
24
Premature births & maternity benefit
From 1st October 2017, the period for which Maternity Benefit is paid has been extended in cases where a baby is born prematurely. A premature birth is described as one at less than 37 weeks’ gestation. It is estimated that every year in Ireland approximately 4,500 babies are born prematurely.
Currently, under the Maternity Protection Acts 1994 and 2004, a mother is entitled to 26 weeks’ maternity leave and 16 weeks’ unpaid leave. Maternity leave normally starts two weeks before the babies expected due date or on the date of the birth of the child should it be earlier.
Under the new amendment, where a child is born prematurely the mother’s paid maternity leave will be extended by the equivalent of the duration between the actual date of birth of the premature baby and the date when the maternity leave was expected to start. For example, where a baby is born in the 30th week of gestation the mother would have an additional entitlement of approximately 7 weeks of maternity leave and benefit i.e. from the date of birth in the 30th week to the two weeks before the expected date of confinement. This additional period will be added onto the mother’s normal entitlement to 26 weeks of maternity leave and benefit, where the mother meets the ordinary qualifying criteria.
Mothers of preterm babies are advised to contact the Department of Employment Affairs and Social Protection (DEASP), email maternityben@welfare.ie, to arrange the additional payment.
Babies surviving from the earliest gestations, such as 23 weeks, can spend months in a neonatal unit in hospital, by the time a premature baby gets to go home, a mother’s maternity leave can almost be used up. This new change has been heralded as a positive step in supporting parents during a difficult time.
Related Articles
Nov 2017
1
10% pay rise for Construction Sector under new Sectoral Employment Order
A Sectoral Employment Order (SEO) for the general construction industry has been signed into law by the Minister for State at the Department of Business, Enterprise and Innovation, Pat Breen.
Effective from 19th October 2017, the order provides for mandatory terms and conditions in the construction sector, including pay, pensions and sick leave. In finalising the Order, the Labour Court received submissions from the Construction Industry Federation (CIF), UNITE the Union, the Irish Congress of Trade Unions and the Trustees of the Construction Workers Pension Scheme.
Who does the Order affect?
The Order applies to employers in the construction sector, regardless of whether or not they are CIF members. The sector is defined to include both “Building Firms” and “Civil Engineering Firms”, examples will include companies involved in; construction, reconstruction, alteration, repair, painting and decorating. It is estimated that the new Order will apply to approximately 50,000 workers. Notably electricians and plumbers are not included.
Hourly Rates
The new minimum hourly pay rates are:
- New Entrant Workers: €13.77
- Category 1 Workers (General Operatives with more than 1 years’ experience: €17.04
- Category 2 Workers (Skilled General Operatives): €18.36
- Craft Workers (Includes: Bricklayers, Carpenters, Plasterers): €18.93
- Apprentices
- Year 1: 33.3% of Craft Rate
- Year 2: 50% of Craft Rate
- Year 3: 75% of Craft Rate
- Year 4: 90% of Craft Rate
These new rates are approximately 10% higher than they had been under the previous Registered Employment Agreement (REA).
Unsocial Hours
The following unsocial hours payments will now apply:
- Monday to Friday, normal finish time to midnight: time and a half
- Monday to Friday, midnight to normal starting time: double time
- Saturday, first four hours from normal starting time: time and a half. All subsequent hours until midnight: double time
- Sunday, all hours worked: double time
- Public holidays, all hours worked: double time plus an additional day’s leave
Pension Scheme and Sick Pay Scheme
The Order provides that employers must provide pension benefits with no less favourable terms than those in the Construction Workers Pension Scheme (CWPS). The Order also provides for a mandatory sick pay scheme, in recognition of the health and safety risks posed to industry workers.
Dispute Resolution
The Order includes a new dispute resolution procedure. No strike or lock-out is allowed unless and until all stated dispute resolution procedures have been exhausted.
Where to from here?
The Order is a significant development for those in the general construction industry. Employers will need to review their payment practices to ensure that they comply with the new requirements.
To keep up with the latest payroll news, check out our new Bright website. There, you'll be able to register for any of our upcoming payroll webinars and download our payroll guides.
To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here
Jul 2017
24
GDPR - What businesses need to know
Data protection and how personal data is managed is changing forever. On 25 May 2018 the new General Data Protection Regulation (GDPR) will come into force. The GDPR is a European privacy regulation replacing all existing data protection regulations.
The current data protection legislation in Ireland dates back to 1998 and 2003, predating current levels of internet usage and cloud technology, making it unsuitable for today’s digital economy.
The GDPR will apply to any personal data of EU cititzens, regardless of whether it is stored within or outside the EU. Most, if not all companies, process a level of personal data, whether it is customer details or employee details, therefore businesses need to be aware and plan for the new legislation.
What is Personal Data
The GDPR substantially expands the definition of personal data. Under GDPR, personal data is any information related to a person, for example a name, a photo, an email address, bank details, their personnel file, or a computer IP address.
Key Changes
Some of the key changes included as part of the GDPR include:
Consent must be clear, distinguishable from other matters and provided in an easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Breach Notifications: where a breach occurs, the Data Protection Commission and affected data subjects must be notified within 72 hours of the breach coming to light.
Data Subjects will have additional rights, including:
- Access Rights: data subjects may obtain from a data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose.
- Right to be Forgotten: data subjects will have the right to request that their personal data be erased, or ceased to be processed.
- Data Portability: data subjects will have the right to receive the personal data concerning them, and the right to transmit that data to another controller.
High Penalties
Ignoring the new legislation is ill advised as there are tough new fines for non-compliance. Companies or organisations found to be in breach of the legislation will face fines of up to 4% of annual global revenue or 20 million Euros, whichever is greater. The Data Protection Commissioner is the authority responsible for enforcing data protection obligations in Ireland. In preparation for the legislation, the Commission is doubling it’s workforce, leaving no doubt that they will be taking their new responsibilities extremely seriously.
To Do
If you have yet to start planning for GDPR click here for guidance on how to prepare.
Jul 2017
6
Should employers keep a register of employees?
Revenue officials regularly carry out prearranged and/or unannounced visits to business premises across the country inspecting various aspects of taxation compliance. Perhaps a lesser known fact, however, is that on request during any such visit, employers have a statutory obligation to produce a Register of Employees.
What is a Register of Employees
A Register of Employees must contain the following information:
- The name, address and PPSN (Personal Public Service Number) of each employee
- The date of commencement of employment for each employee
- The date of cessation of employment for each employee (where appropriate)
The register will not only contain information for full-time staff but also must include temporary, part-time or casual employees.
The obligation to maintain a Register of Employees is separate to an employer's obligation to register with Revenue for PAYE purposes.
Storing the Register
The Register of Employees must be kept either at the normal place of employment of each employee or at the main place of business of the employer, for example, a business’s HQ. The register may be in paper or electronic format.
Employers who outsource their payroll and normally retain very little information on site must be aware that the onus remains on them to keep and maintain the Register or Employees at the normal place of business.
The Penalty for Non-Compliance
Failure by a company to keep and maintain a Register of Employees carries a penalty of €4,000.
Jun 2014
4
Changes to Holiday Pay Calculations
As we enter the summer holiday season employers need to ensure that they are paying their employees correctly during annual leave.
A recent decision by the European Court of Justice (ECJ) will impact how some annual leave pay is calculated.
Do you pay employee’s commission? Is the commission calculated based on the amount of sales made or actual work carried out? If yes, according to the ECJ, holiday pay should include commission pay.
The decision was made in the case of Locke v British Gas Trading and Others. Locke was a Sales Representative whose commission made up approximately 60% of his remuneration. After taking two weeks leave in 2011, Locke suffered financially as he was unable to generate sales for the period he was on annual leave.
The ECJ ruled that the purpose of annual leave is to allow a worker to enjoy a period of rest and relaxation with sufficient pay. By not including commission payments with holiday pay, employees are less likely to take annual leave so as to avoid financial hardship.
It has been left to the national courts to determine how to calculate the commission to which a worker is entitled, however the court did suggest that taking an average amount of commission earned over a certain period, e.g. the previous 12 months.
Employers are advised to review their commission policies to establish which, if any, payments need to be included in annual leave pay.
Mar 2014
3
How to Roll out Contracts & Handbooks to Existing Staff
Introducing a contract of employment or a handbook for the first time to current employees, can be a difficult, tricky matter for many employers.
It is an area that many employers put on the long finger, or avoid doing until they have to.
Common reasons for not implementing employee documentation include:
• Lack of time
• Fear that employees will refute the terms of the documents and refuse to sign
• Anxiety that documentation will harm the relationship between management and staff, if the employees feel a new set of rules are being entrust upon then
• A false belief that it will restrict how management deal with employees
However, this does not have to be the case. It is possible to introduce new documentation without spending huge amounts of time, alienating your work force, or causing disruption.
The answer lies in good communications.
To help employers introduce employee documentation, we’ve created a short video outlining our four step guide to rolling out contracts and handbooks.
Alternatively, read our guide to Introducing Contracts & Handbooks to Existing Staff available here http://www.brightcontracts.ie/docs/introducing-contracts-handbooks-to-existing-staff/
Feb 2014
25
National Employment Week - Improving employment for everyone
The 4th National Employment Week takes place this week, 24th to 28th February. National Employment Week was established as a forum focusing on social and economic issues surrounding employment in Ireland. As the country endeavours to reduce the number of people out of work and move towards economic recovery, National Employment Week puts employment at the centre of the agenda.
The week offers the opportunity to employers, managers and HR professionals to share opinions and experience on employment issues and set the national employment agenda.
Although supported by Government, with both the Taoiseach and Minister for Social Protection, Joan Burton attending several events throughout the week, there is very much a commercial aspect to the week. The week itself has strong, reputable sponsorship with The Irish Times, The Chartered Institute of Personnel and Development (CIPD), Sigmar Recruitment and Monster.ie all involved. In addition all events, seminars and focus groups alike, are attended by professionals representing employers of all sizes and types across Ireland.
This year the focus will be on the following topics:
• Digital Innovation and the Drive for Talent
• Significance of Company Culture
• Emerging Talent
• The importance of investing in the future
• Mental Health & Employment
The highlight of the week is the National Employment Summit which takes place on Wednesday in the Convention Centre, Dublin. This is a free event and anyone can attend to hear practical measures that can be taken back to businesses.
National Employment Week is striving to achieve a better employment market for everyone. It is heartwarming to see such positive steps being taken. If you don’t make any of the events this year, mark it in your diary for next year. Further information can be found at http://www.nationalemploymentweek.ie/.
