​Zero hour contracts have received a great deal of media attention in both the UK and Ireland recently, and rightly so. While unemployment statistics are often cited and analysed, there is an increasing understanding of the need to look into exactly how people are employed rather than simply whether or not they have a job. It is essential to shed light on different types of contracts that are being issued to employees, not least to ensure that their rights are protected. So, what exactly is a zero hour contract?
 
In a nutshell, zero hour contracts are working arrangements wherein an employee must be available to work for a certain number of hours each week, yet employers do not have any obligation to give any hours to the employee. Employers, particularly those in businesses that experience seasonal highs and lows, tend to use zero hour contracts to increase flexibility and limit their commitment to employees.

While there are fewer employees on zero hour contracts in Ireland, it is estimated that a massive 1.4 million people are working on these contracts in the UK. Many employers have been criticised for taking advantage of employees by using zero hour contracts, as they offer next to no financial security for workers and can make achieving a comfortable work-life balance very difficult. In light of this, the Irish government is proposing a number of changes to the current legislation in Ireland that could impact both employees and employers. In this post I will discuss the current situation regarding zero hour contracts in Ireland, outline the Government’s proposed changes and detail their possible effects on Irish businesses.

The Current Legislation
 
Unlike in the UK, employees in Ireland who are on zero hour contracts are protected by the Organisation of the Working Time Act 1997. There is little more frustrating for an employee than being contractually obliged to work, yet not being given any hours. In order to protect employees on zero hour contracts falling victim to this, Section 18 of the Organisation of the Working Time Act states that an employee in this situation is entitled to be paid for 25% of the hours which they were required to be available for, or 15 hours pay – whichever one is less.
 
This at least ensures that employees on zero hour contracts are guaranteed a pay cheque, regardless of what hours their employer gives, or doesn’t give, them. It is important to note that Section 18 of this act does not cover ‘casual’ workers who are not contractually obliged to accept work from their employer.

What Changes Are Being Proposed?
 
In order to further strengthen protection for zero hour contract workers and boost their entitlements, the Irish government plans to make it illegal to hire an employee on a zero hour contract and give them no hours at all. Furthermore, in the event that a worker is called into work and does not receive the hours expected, they will get a minimum payment of three times the minimum wage or three times the rate stipulated in an Employment Regulation Order.
 
Finally, under the new proposals, employers will have to be much clearer about the terms of employment given to an employee. In fact, employers will be required to provide, in writing, five core terms of employment. This will include outlining how many hours the employer expects an employee to work in a given week.
 
How Will Employees and Employers Be Affected?

Clearly, these proposed changes are positive for employees, giving them increased financial security and more entitlements under zero hour contracts. However, employers must understand that the proposals could mean much more bureaucracy and a greater need for due diligence when it comes to employee management and drawing up contracts. Failure to properly understand and comply with any legislative changes that come into place could put employers at risk of criminal prosecution – all the more reason to keep a close eye on the status of the proposals and react accordingly.

Importantly, zero hour contracts suit certain employees and employers, especially due to their flexible nature. That being said, it is vital that businesses are transparent about the work contracts they are providing and that those contracts meet all legislative requirements. Keeping on top of changes in employment law is part and parcel of running a good, ethical business.
 
For more helpful HR tips and advice, CLICK HERE to sign up to our newsletter.
 

It’s that time of year again, the day that people either love or hate: St Valentine’s Day. You may think that your employees should be kept busy with work, but apparently nothing stands in the way of potential love.  While they can't be prevented, office liaisons are not always a joy for business owners, so keep an eye out for these tell-tale signs that an office love affair is brewing and manage it before it gets out of hand.

Six Signs that John and Mary have become star crossed lovers:

They Avoid Eye Contact
When John was first hired and met Mary from the office, there was a bit of competition between them, which at times led to team tension. It was only natural as an employer to be relieved when they became cordial with each other and finally clicked as colleagues.

Everything seemed to be going smoothly, until suddenly they became extremely formal with each other. Now they barely make eye contact in public any more. In fact, when found in a room together, Mary blushes, John looks pale, and they both suddenly leave.

They Never Leave the Office Together 
“OK, I'm out of here,” Mary announces loudly, making sure everyone in the office can hear.

“Lucky you! It will be a late one for me.” John answers just as loudly. “See you tomorrow”.

Regardless of office size, most employees tend to leave work around the same time. However lately, for some odd reason, John and Mary make a point of letting everyone know they are leaving individually.

They're Both Putting in an Awful Lot of Overtime 
John and Mary have always been good employees, but they used to have lives outside of work. Now (when they aren't making sure everyone knows they are leaving separately) they are both the first into work in the morning and the last to leave, and when someone is needed to put in some overtime, John and Mary will be the first to volunteer.

Their Annual Leave and Sick Days Keep Matching Up 
The first time John and Mary took time off at the same time it seemed to just be a coincidence, however when they also began calling in sick on the same days, office gossip started. In fact, it has become more surprising to see one of them in the office on a day when the other is out, even more intriguing, if either one of them is asked what they did on their time off, they reply with a vague answer. 

They Start Fiercely Defending Each Other
Your business may be known for imaginative, brainstorming sessions, with no hard feelings and employees being able to enjoy the freedom of engaging in lively debate and witty banter. They are confident and skilled, and everyone knows it's nothing personal if an idea doesn't get backed.

At the last development meeting, Mary offered an idea that was immediately shot down by other team members, however when John adamantly defended her position beyond any logic, it created a strange tension amongst the group.

They Both Look Great 
Mary was always pretty, but there were days when it looked like she had just rolled out of bed and wasn't too put together. Now her make-up is always perfect, she's sporting a new hairstyle and she wears stylish new outfits. 

John was a good-looking guy, but a bit of a couch-potato outside of work. Then he started jogging at lunch time, and instead of eating his usual crisp sandwich he was suddenly discussing benefits of protein and eating lean chicken and salad. Soon Mary started going for a lunch time run too and they both joined the same local gym which they now attend regularly after work.


FACTORS TO CONSIDER

Before potentially facing sticky situations like above, it’s important to consider factors that come into play when co-workers begin to mix their personal lives with professional responsibilities on the job.

In addition to the legal consequences that could arise, more often than not, office relationships have an overall negative impact on the workplace, as workplace relationships may spur gossip, rumours and innuendo, which can be disruptive to the office and can negatively impact the reputation of the company if customers or clients are exposed to it. The same activity can make the affected couple feel bullied, which can lead to harassment charges from them.

Whilst office romances are not ideal, the most potential to cause problems are those that involve a supervisor and one of their subordinates. Often, fellow team members believe favouritism is occurring between the two, and that the supervisor is not being fair and objective when delegating responsibilities in the work place. It could be questioned that the lower level employee is being given special consideration by their partner when it comes to handling tasks or completing job requirements.

Another matter to take into consideration would be that other employees may believe they can’t discuss or complain about their team member to the supervisor involved in the relationship. If this is the case, issues that would generally be discussed will remain unspoken and un-addressed, which could lead to a decline in moral, and quite possibly filing of a discrimination suit.

Issues can become even more complex when you consider the likelihood of the supervisee having a certain influence over the supervisor that other employees wouldn't have. In addition to this, potentially due to the relationship, employees could accidentally disclose information to their partner, which could easily happen when sharing events of the day with one another.

Perhaps two of the most important factors to consider are when the couple has an argument or splits up. It would take a very professional employee to be able to keep their personal life separate from business matters and it could be possible that the couple may act out their feud on an employer’s time. Potentially, co-workers may be pulled into the argument and feel they need to take sides. This in turn may detract from the team’s productivity as a whole.

As office romances that end badly can roll into the daily work environment, employers may find themselves dealing with concerns such as diminished productivity or mediating between employees who are no longer co-operating with each other. This may also affect other employees, who could potentially feel hostility towards one of the team members in the former relationship, creating a negative tension in the workplace environment.

Additionally, there is the potential for employees to seek out employment elsewhere when relationships come to an end, which means employers risk losing strong employees who feel that they can no longer work at the company because of the breakup.

Finally, the most harming factor to consider as a result of an office romance breakup, especially if there is a difference in rank between the two individuals involved, is a sexual harassment claim. There could come a point where one person wants the relationship to continue and the other person doesn't, which in turn may lead to an employee seriously considering filing a sexual harassment lawsuit.


TAKING THE RIGHT STEPS

Simply speaking, the best way to avoid negative repercussions on office romances is to forbid employees from dating and never hire married couples, however in today’s world, the is unrealistic and would prove very difficult to sustain.

It is critical to work closely with an HR professional to anticipate problems and set solutions. All employers, regardless of company size, should have formal policies on office relationships in place, which should include what is allowed and what the consequences are if rules are broken. In every policy, it should be stated that any office relationship, regardless of rank, should be disclosed to the employer.

The employer should also reserve the right to decide on which type of employment action, if any, needs to be taken due the relationship, whether it is transferring an employee to another department or termination of employment.

However, just having a company policy in place isn't enough; companies need to ensure there is regular training available, particularly on the topic of sexual harassment. Often employees don’t know the extent of liability that could potentially arise from office romances, and how disruptive they could be in the workplace.

It is also imperative that the policy needs to be consistently enforced at every level of the organisation. Whether it is a CEO or an Assistant Executive that violates the policy, the same rules should apply. If not, team morale will be dampened and no one will follow the policy. Employers may even open themselves up to potential lawsuits from employees who believe they have been discriminated against.

At the end of the day, the goal of an employer is to provide a professional atmosphere where company targets can be achieved. Ideally, the working environment should be pleasant enough that your staff can enjoy themselves while being as productive as possible.

Interpersonal relationships between employees are unavoidable, so being aware of the potential downsides and types of relationships that are developing will go a long way to sustaining as much of a "hazard free" environment as possible.



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 every employer will know, employee rights are a minefield that needs to be navigated carefully. One wrong step could result in very costly legal proceedings. Nowhere is this truer than in the case of unfair dismissal. In the last month alone numerous cases of unfair dismissal have been reported in the media, from the Dunnes Stores worker who sold alcohol to a minor to the customer services representative at Oxigen who was dismissed for using expletives in an open office.

Also remember in a unfair dismissal claim it is presumed the employee was unfairly dismissed unless the employer can prove otherwise!

So how do so many companies end up in this position? While every case is different, there are two points at which the majority of businesses fall down:

1.       Clearly outlining the disciplinary process in the contract of employment and staff handbook

2.       Poor implementation of the disciplinary investigation

1.       Your Contract of Employment and Staff Handbook

From the time that employment commences, each staff member should be provided with a contract, which they must sign, and staff handbook that clearly stipulate the terms and conditions of their employment. Amongst these terms and conditions are the disciplinary procedures adopted by the company for dealing with issues of performance, bullying, negligence, misconduct and so forth. The procedure serves as a guideline, not just for the employee but for the employer too, that can be implemented when necessary, ensuring that a fair, unbiased and systematic series of series of steps.

Here are some considerations when drafting your employment contract and staff handbook:

a.       How long a probation should I have?
b.      Will I pay employees on sick leave and if so for how long?
c.       Do I have a clear job description?
d.      Will my employees be working at different locations?
e.      Who will carry out disciplinary investigations?
f.        Do I need a CCTV policy?
g.       Do I need a social media policy?
h.      What are the employees statutory leave rights?
i.         Do employees need to keep some annual leave for Christmas or Easter

2.       Poor Disciplinary Investigation Process

While it is important to clearly state the disciplinary process in your staff handbook, it is equally important that it is implemented effectively. As part of the process, an employer should carry out a disciplinary investigation, even in cases of apparently ‘obvious guilt’ or where there is an admission of guilt. With this in mind, an investigation should always be carried out prior to any disciplinary action if an employer is to ensure it does not fall foul of the principles of fairness and natural justice established by case law.

Remember, as an employer you must be able to demonstrate that you genuinely believe that the employee is guilty and that this belief is based on reasonable grounds, after having carried out as much investigation into the matter as is reasonable in all the circumstances of the case. A flawed or incomplete investigation can undermine the entire disciplinary process, leading to claims of unfair dismissal, costly legal battles and hefty pay-outs that often cripple smaller businesses.

Below are some points, provided by UK based commercial law firm Hill Dickinson, that every person carrying out the investigation should consider before commencing:

1. What’s the problem? Clearly identify the allegation to be investigated.
2. Independence and impartiality - ensure the investigating officer is independent: they should not have any previous involvement in, or knowledge of, the matter.
   
3. Open mind - the investigating officer should keep an open mind. Their task is to look for evidence which weakens, as well as supports, the employee’s case; it is a fact finding exercise.
4. Swift investigation - ensure the investigation is commenced and concluded without unreasonable delay; it is important to establish the facts and put the allegations to the employee promptly before recollections fade.
   
5. Expectations - where significant delays in concluding the investigation are anticipated, this should be notified to the affected employee and where possible a timescale for completion given.
6. Preserving evidence - the investigating officer should consider what evidence or documentation they might require. Where evidence is likely to perish or be removed or destroyed this should be gathered as a priority.
   
7. Fair investigatory meeting - interview the ‘accused’ employee to establish his/ her version of events; give the employee advanced warning of the meeting and time to prepare. The employee should be made aware of the allegations against them, preferably in writing and be provided with any documentation that the investigating officer wants to speak to them about.
8. Representation - be aware that, although there is no statutory right for an employee to be accompanied at an investigatory meeting, the right may apply under the company disciplinary procedure or by reason of custom and practice.
   
9. Witnesses - interview witnesses, sometimes more than once if necessary. Employers need not interview all available witnesses once a fact has become clearly established.
10. Record keeping - if possible, have someone accompany the investigating officer to interviews so they can take a note of the interview allowing the investigating officer to focus on the questions. Ask the witnesses to read through the notes and confirm they are a true reflection of the conversation by signing and dating them.
    
11. Confidentiality - witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
12. Impartial reporting - after collating the evidence, including statements and relevant documents, the investigating officer should draft an investigation report setting out a summary of the evidence including any inconsistencies. They should not draw any conclusions: that is the role of the disciplinary panel.
    
13. Recommendations - depending on what the employer’s disciplinary policy says, it may be within the investigating officer’s remit to recommend whether the matter should proceed to a disciplinary hearing.

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.

While it may not have received huge media attention, the Protected Disclosures Act, which came into effect last month, holds some major legal ramifications for businesses that many owners and CEOs may not be aware of.

In short the Act provides legal protection for workers who disclose wrongdoing is the public, private and non-profit sectors. It is far more robust than any legislation which preceded it, with the protections extend beyond the usual definition of employees to cover the likes of contractors, former employees, trainees and interns too. Another interesting aspect of the new legislation is that retrospective disclosures may also be made, meaning that a disclosure made before the date of the act (15th July 2014) may still be protected. It’s not yet clear how far back this cover will go.

Impact on Employers

 All businesses should have in place a clearly stated reporting policy and set of procedures (usually outlined in the staff handbook) that employees can follow if they believe any relevant wrongdoings have occurred or are occurring in connection with their employment. These businesses will need to review their existing policies to ensure they fulfil the requirements of the Protected Disclosures Act, while shoring up any gaps that may leave them exposed.

As an employer it is in your best interest to introduce these new policies and educate your staff on them. By encouraging workers to come to you with any information they believe to indicate relevant wrongdoings, you are creating an environment where staff feel comfortable to voice their concerns, while limiting the potential for such matters to become external and out of your control. Should workers feel that they cannot go to their employer to make a disclosure, they can go beyond the workplace if they can satisfy certain criteria. This may include the media, government ministers or legal advisors.

Penalties for Employers

If an employee is dismissed for making a protected disclosure, they can be awarded compensation of up to five years' remuneration for unfair dismissal. This is a significant leap from standard employment law awards, which are subject to a two year cap. Also, an employee who claims to have been dismissed or threatened with dismissal for having made a protected disclosure can apply to the Circuit Court to restrain the dismissal.

Developing and Implementing Your Whistleblowing Policy

While the intricacies of every business must be taken into account, here are six tips that apply to every business in developing and implementing their whistleblowing policy:

1.       It should provide a step by step guide for employees, stating clearly that whistleblowing concerns are distinguished from worker’s grievances, .

2.       It should provide examples of relevant disclosers (as outlined in the Act), illustrating the types of concerns workers may raise.

3.       It should state the various disclosure avenues available to employees, should they feel that unable to voice their concerns to management, and the various criteria the must meet in each circumstance.

4.       It should be clearly expressed that the organisation take malpractice very seriously and the identity and confidentiality of the whistleblower will be respected.

5.       Once the policy has been developed, employers should utilise whatever communications tools – intranet, newsletter, departmental meetings, etc. - they have available to inform employees and address any concerns they may have.

6.       Training should be provided to those responsible for receiving disclosures from workers.

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 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.