As the Irish economy continues to recover, demand for skilled employees is growing amongst businesses, while the willingness of people to switch jobs is also on the rise. However, for business owners who have invested in training and up-skilling their staff, the fear of them leaving once they complete a course is a very real human resources issue. So what can you do as a business owner to protect against such an issue?

Firstly, let’s be clear that, in general, it is mutually beneficial to invest in the up-skilling of employees and it is considered a normal part of the employer-employee relationship that the employer will pay for or contribute to the costs of employee training.  The benefit to the employee being the opportunity to develop their skill-set by learning more about a particular profession or product, while for the employer should gain from a more qualified and enthusiastic workforce, which will hopefully translate into increased or more efficient business. Developing a training and development programme can be a very powerful Human Resources tool for employers that can work to retain loyal staff and attract new talent.

Most of the time the type of courses that the employer will pay for are typically one or two day courses run either by an association linked to the particular business or even by a manufacturer who wants to illustrate technical benefits of a particular product range.

However, there are some situations where a course is going to involve a greater investment of time by the employee and a larger financial investment by the employer.  In some industries, such as the legal and accountancy professions, there is strict formal training that will be spread over a number of years. Here it is common for the employer to cover the fees and often pay a salary to the employee whilst they are going through the particular course. The benefit to the firm is that the employee is available to assist the senior members of the profession and “learn on the job”. 

It is not uncommon for the employee to part company with the business at the end of the training and there is usually no question of the employee reimbursing the employer for the cost of the training. 

However, with profit margins still tight and the need to retain the most talented staff, it is becoming more and more common for businesses to have a clause in a contract of employment that where the employer pays for certain training, the employee is expected to stay in the business for a certain period of time after the training has been completed and, if they leave before that period of time, they must reimburse some or all of the fees that have been paid on their behalf.

Ultimately, investing in staff is a great way for an employer to demonstrate the value they see in them. It is a practice that has been used in human resource in Ireland for years and will no doubt continue to be used. It is up to you as the employer to establish the formal commitment that is to be associated with the training you provide to your employees and that it is agreed, in writing, prior to their commencement of the course, preferably in your staff handbook.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

As Ireland’s economy continues to pick up, more and more small businesses are looking to grow and hire new staff. Many do not yet have the budget to recruit someone on a full-time basis, so are appointing people to part-time roles. However, there are a couple of things, from a human resources perspective, business owners hiring part-time staff should be aware of, which we’ll aim to clear up in this blog.

As a result of the large number of employees working part time in Ireland the Protection of Employees (Part-Time Work) Act 2001 was introduced primarily to ensure that part-time employees were not discriminated against in comparison to a full-time employee and generally to bring improvements to the status and rights of part-time employees.

1) Who does the Act apply to?
The Act applies to any part-time employee who is under a contract of employment or apprenticeship, or employed through an employment agency. 

2) What is a Part-Time Employee?
A part-time employee is an employee whose normal working hours are less than the number of hours worked by a comparable employee.  A part-time employee no longer has to have 13 weeks continuous service and no longer has to work a minimum of 8 hours per week to be covered by the Act. It is worth noting however that for the purposes of entitlement under unfair dismissals or redundancy legislation applies that the part-time employee must have the required continuous service of 12 months to accrue rights.

3) What does the Act actually do?
The Act confirms that a part-time employee cannot be treated less favourably than a comparable full-time employee in respect of pay and terms and conditions of employment.  These conditions are both statutory rights such as the right to Maternity Leave, Adoptive Leave, holidays, etc. and contractual such as sick leave, health insurance, bonus schemes etc.

4) What is a comparable full-time employee? 
An employee is a full-time employee when both employees work for the same employer and fulfils one of the following criteria: 

• The part-time employee performs the same work as the full-time employee under the same or similar conditions (or both workers are interchangeable with the other in relation to the work). 

• The work performed by one of the employees is of the same or a similar nature to that performed by the other employee and where any differences between the work performed or the conditions under which it is performed by each employee are either of little importance in relation to the work as a whole, or occur so irregularly as not to be insignificant;

• The work performed by the part-time employee is equal or greater in value in terms of skill, responsibility or working conditions
  

5) Can a part-time employee be treated less favourably than a full-time employee? 
A part-time employee can be treated less favourably than a comparable full-time employee where such treatment can be justified in two circumstances:

• Where the part-time employee's less favourable treatment can be justified on "objective grounds"; and 
  
• The provision of pensions.
  

6) What are "Objective grounds" for less favourable treatment?
"Objective grounds" for treating a part-time employee less favourably than a comparable full-time employee are based on considerations other than the status of the employee as a part-time employee. These grounds occur where the less favourable treatment is necessary for the purpose of achieving a legitimate objective of the employer.  As with a lot of these ‘objective tests’ it is not always clear what is or is not objective. One case heard by a rights commissioner that examined whether an employer had an objective ground to treat part-time employees less favourably than full time employees was:

Cahill May Roberts – and – Rachel O’Leary where the employer claimed that Ms O’Leary’s job was not the same as the comparator and therefore it was justified in paying Ms. O’Leary a lesser rate of pay.  However the Labour Court, after carrying out a work inspection to determine if the claimant and the named comparator performed like work, found that the comparator had no formal title that would distinguish her from her fellow workers in the warehouse and that both the comparator and the claimant were engaged in the same or similar work and awarded back pay to 1 of January 2003 plus €500 compensation.

7) What about Pensions?
A part-time employee who normally works less than 20 per cent of the normal hours of the comparable full-time employee can be treated in a less favourable manner with regard to a pension scheme or arrangement. However, this provision does not prevent an employer and a part-time employee from entering into an agreement whereby the part-time employee receives the same pension benefits as a comparable full-time employee.

8) Are Part-time workers entitled to overtime? 
Part-time workers are entitled to overtime if the full-time employee to which they compare themselves is paid overtime after working his/her maximum hours per week.

In order to claim overtime however, an employer can determine that part-time employees must work the same number of hours as a full-time employee before they can claim overtime.

9) Does an employer have to grant access to part-time work? 
Whilst an employer is not obliged to provide access to part-time work to his or her employees the Government published a Code of Practice on Access to Part-Time Working in 2006 that encourages employers and employees to consider part-time work.

10) What grounds will be deemed to be penalisation of part-time employees? 
 An employer cannot penalise a part-time employee on the grounds that:

• The employee exercised his/her right not to be treated in a less favourable manner than a comparable full-time employee in relation to conditions of employment;

• The employee, in good faith, opposed an act that is unlawful under the Protection of Employees (Part-Time Work) Act 

• The employee refused to accede to a request by the employer to transfer from performing part-time work to performing full-time work or vice versa 
  

11) Are there circumstances where an employer can penalise an employee?
Employers may refuse a request by the employee to transfer from full-time work to part-time work (or vice versa) when the following conditions are met:

• The employer must have substantial grounds both to justify the making of the request and for taking any action after the employee's refusal to transfer from full-time work to part-time work or vice versa 

• The taking of the action is in accordance with the employee's contract of employment and the provisions of employment rights legislation.
  

Clearly the implications of agreeing to or requesting an employee to work part-time has significant implications for both the employer and the employee.  Whilst there are clear benefits to both parties in such an arrangement employers should be aware of their obligations and the part-time employees rights in such an arrangement.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

All too often, sick leave is one of those grey Human Resources topics that many Irish businesses prefer to ignore. However, having a clear policy and sticking to it, is important. If you don’t already have a policy in place, now is the time to do it.  The possible financial and non-financial losses to your business caused by employee absence can be wide and varied and include:

• Payment of employee while absent, dependent on your policy.
• Payment of staff, perhaps at overtime rate, to cover absent employee.
• Lost income due to cancellation or disruption to appointments.
• Increased workloads on other staff.
• Reduced quality of service to your clients.

Generally, the most effective ways of managing absence are inexpensive and easy to administer. In this article the following questions will be answered:

1.                   Are there any circumstances where an employee has a right to sick pay?

2.                   Should a sick leave policy be written down? 

3.                   What should the policy contain?

1.  Are there any circumstances where an employee has a right to sick pay?

In general there is no statutory right to sick pay in Ireland.  Some employees are covered by registered agreements outlined by a Joint Labour Committee (JLC) that may have a right to sick pay for example the Hairdressing JLC issued in 2002 includes a sick pay scheme. Whilst these JLC’s were found to be unenforceable by the High Court it could be that an employee whose contract was based on the rights set out under the JLC will contractually be entitled to those rights.

2.  Should a sick leave policy be written down?

Some employers do not have a formal sick pay policy but routinely pay employees who are out sick.  This system works well except where one or more employees take advantage of the employer’s generosity, giving rise to difficulties with both the employer and other employees.  If the policy is informal it could in fact become a contractual right of the employee on the basis of ‘custom and practice’ and an employer could find himself or herself bound to paying sick leave without any right to withdraw it unless it is clearly stated in a policy.

It is always preferable, and good human resource practice, for an employer to have the policy, whether they pay sick pay or not, written down and it should be implemented across the board.

3.  What should the policy contain?

It is important that an employee is fully aware of the manner in which the employer deals with absence and the procedures for reporting absence. This may be stated in the employment contract, in the employee handbook or in a separate practice policy document. The absence policy should include the following:

A Statement on the Employer's Approach to Absence

 The policy should state that good attendance is expected; the effect of absenteeism and that absence is measured and tracked by the company or practice. Moreover, the policy should specify that the employer will take any measures it deems appropriate to address unacceptable absenteeism, up to and including amendments to existing benefits.

Employee Notification Requirements

The policy should clearly outline for the employee (1) Who they should contact if they are unable to attend for work and (2) When they should contact, e.g. must they contact in advance of normal working time to allow the employer time to make alternative arrangements or within a number of hours of normal starting time?

The expected frequency of employee contact with the employer during continued periods of absence should also be clearly outlined.

Provision of Medical Certificates

The policy should state when the employee is required to provide a medical certificate, what must be stated on that certificate and the frequency with which those certificates must be submitted. It is important to note that the provision of a medical certificate does not excuse absence; it merely provides an explanation or reason for it.

Payment While Absent

The Terms of Employment Information Act, 1994-2001 places a legal obligation on the employer to advise employees of the terms and conditions (if any) relating to incapacity for work due to sickness or injury. Thus the policy must outline whether or not the employee will be paid during the absence and the conditions relating to payment. For example, payment of sick pay should be conditional on compliance with notification requirements, provision of certificates, submission of state disability cheque or acceptable levels of absence. It is important that the employer clearly specify the grounds on which an employee may be disqualified from payment.

Medical Examinations

The policy should state that the employer reserves the right to refer the employee to an employer-nominated doctor at any time, at the absolute discretion of the employer and that it is a condition of the employee's employment that they attend the doctor and consent to the employer receiving a copy of the doctor's medical report.

In conclusion, whilst most employers are happy to pay an employee for the time they are off sick there may come a time where this is not possible due to frequent or prolonged absences.  Employers should have a clear policy as to how much and for how long sick pay will be paid to avoid   

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

Bullying in the workplace continues to be a major human resources issue in Ireland. For small to medium business owners discovering that a member of your staff is being bullied can be a major cause of stress and anxiety. More significantly, if it is not addressed in a timely and appropriate manner it can lead to damage to your business’s reputation, costly legal disputes and a loss of earnings.

Let’s set the scenario: A member of staff comes to you to complain that they are being bullied by a fellow employee and that they are considering leaving the business as a result of this behaviour. What do you do?

Firstly, there are two issues that you should be concerned about in this situation that are linked but should be dealt with separately;

1.       Properly investigating the bullying allegation

2.       Ensuring that if the staff member leaves that you don’t face an action for constructive dismissal.

Unless you have experience in these matters and are happy that you will be able to deal with the investigation, you should consider getting advice from a HR consultant before embarking on taking any action.  However, if you do decide to proceed on your own here is a seven step outline of the process you should go through:

1. Refer to your policy on bullying that you should have in your handbook or safety statement and should have been given to every staff member.  If you don’t have a policy you are already in a difficult situation as you will have to investigate the allegations without a written policy or procedure in place that could result in problems if you do find yourself defending a claim for constructive dismissal. 
2. Sit down with the staff member who is making the allegations and take a full and detailed statement from her under the following headings:

·                     Confirmation of who she is making the allegations against;

·                     Full details of the particular incidents she is complaining about and

·                     Whether there are any witnesses to the alleged incidents.

Difficult as it may be you should resist drawing any conclusions or committing yourself to any particular course of action before you have had a chance to talk to all those concerned. 

1. Depending on the seriousness of the bullying allegations and the state of mind of the staff member making the allegations you might also want to consider if it is appropriate to offer her time off, on full pay, whilst you are carrying out your investigation. You should then, if practical, put the allegations into some form of a statement for the employee to consider and sign. You should also assure her that she should remain on as an employee until the investigation is completed and a decision is made as to what action to take, if any.

1. Following this, talk to the person who has been accused of the bullying behaviour.  This is clearly going to be an awkward situation and it is not uncommon for the person to express disbelief and shock at the allegations.  Again it is important that you give as much information on the allegations so that the person has time to consider them and respond accordingly.  You should also make it clear that you are merely conducting an investigation into the allegations and that this is not a disciplinary process.  Again, if possible you should get the staff member to prepare some form of statement in response to the allegations.  As with giving the alleged victim an option of time off, you may also have to consider a suspension on full pay of the person accused of the bullying if you feel the situation is serious enough for that course of action. 

It is essential that you assure the staff member who has been accused of bullying in the workplace that the suspension option is only because the work circumstances mean that it would be difficult for the two individuals to work together and not part of a disciplinary sanction.

1. You should also take statements from any other members of staff or otherwise that either of the employees offer as witnesses.
2. Once you have completed the process of taking the statements you will then have to consider if there are grounds to take the next step which is a disciplinary investigation.  The difference with this investigation is that you are taking an action on a staff member under your disciplinary procedure.  Again, if you don’t have a written procedure in place you have to make sure that you carry out the investigation fairly and give all parties as much information as possible as to what is being alleged and an opportunity to answer any claim made against them.

1. Once the disciplinary investigation is completed, depending on the outcome of the investigation, you will then have to take the appropriate action against the staff member.  For example, if the allegations are found to be true and to be at the higher end of the scale you may have to consider a dismissal or a suspension.  For lesser offences you could issue a written or verbal warning on the clear understanding that if there is a re-occurrence that the possibility of dismissal is high.  This process will be a lot easier if you have in place a proper written procedure on how a disciplinary process will work, irrespective of the type of conduct by the staff member that requires action by the employer.

As I mentioned at the start, investigating and addressing the accusation of bullying in the workplace is one issue. As an employer it is important to ensure you minimise your exposure to claims of unfair dismissal. The best way to do this is to clearly demonstrate a fair and rational disciplinary procedure. It should clearly set out the basis for the disciplinary action and the range of penalties that can be imposed. It should also provide for some form of internal appeal mechanism.  This is another reason why an employer should consider having another senior member of staff or an outside person carry out the initial investigation as the employer can be the person to hear the appeal.  Any allegations should be clearly explained to the employee concerned and they should be given a chance to respond fully to these allegations.  An employee has the right to be represented, if they wish, and if appropriate all allegations should be set out in writing.

Following on from this if an employer can show that a fair process was followed then it would be more difficult for a disgruntled employee to resign from her job and then bring an action for constructive dismissal.  A lot of constructive dismissal claims, where an employee resigns but claims that they were left with no option, are grounded on the allegation that the investigative and/or the disciplinary procedures followed by the employer were flawed and did not follow the employers own policies or if there were no policies did not follow the rules of fairness and natural justice.

Given the relative size of a lot of small businesses the reality is that investigations into these types of allegations are difficult, particularly as both the accuser and the accused often work in close proximity to one another.  The employer can also find it difficult because they don’t want to have to take sides or be seen to make the wrong decision.  If you feel that you are unable to be objective you should consider getting another senior person unconnected with the situation to carry out the investigation or alternatively get someone from outside the business to do it who has some experience in these matters.  That way you will certainly be able to show that you took the allegations seriously and had a full and thorough investigation into the allegations.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.