A GUIDE TO EMPLOYMENT LAW FOR SMEs -An Employer s Handbook May 2016 1
Contents GUIDE TO EMPLOYMENT LAW... 9 INTRODUCTION... 9 SECTION 1 - RECRUITMENT & SELECTION... 10 Discrimination... 10 Vicarious Liability... 11 Steps in the Recruitment & Selection Process... 11 Job Specification... 11 Advertising the Position... 11 The Application Form... 12 Screening Candidates/Shortlisting... 12 Interviewing... 13 Appointment... 13 Induction... 14 Common Job Interview Questions... 14 Sample Offer of Employment... 17 SECTION 2 - TERMS OF EMPLOYMENT... 22 The Terms of Employment (Information) Acts 1994 & 2001... 22 The Contract of Employment - Summary Points... 22 Contracts for a Fixed Term or Specified Purpose Contracts:... 23 Termination of Contract... 24 Sample Contract of Employment... 27 Fixed Term Workers... 33 Disputes... 36 Part Time Workers... 37 Temporary Agency Workers... 38 The Employment of Children And Young Persons... 39 Hours of Work... 41 Information and Consultation... 44 Optional Terms & Conditions... 48 2
SECTION 3 LEAVE ENTITLEMENTS... 65 Annual Leave... 65 Timing of Annual Leave... 67 Payment for Annual Leave... 67 Leave Year... 68 Disputes... 68 Sample Annual Leave Form... 69 Public Holidays... 70 Conditions for qualifying for a Public Holiday benefit... 70 Employees absent from work prior to a public holiday... 71 Disputes... 71 Maternity Leave... 72 The Maternity Protection Act 1994 & 2004... 72 Sample Maternity Leave Policy And Form... 80 Adoptive Leave... 82 Additional Adoptive Leave... 82 Additional Adoptive Leave (Foreign Adoption)... 82 Notification... 83 Additional Adoptive Leave... 83 Return to Work... 83 Irish Adoption... 83 Foreign Adoption... 83 Redress... 83 Parental/Force Majeure Leave... 84 Notice... 85 Records... 86 Disputes... 86 Redress... 86 Sample Document - Parental Leave... 87 Careers Leave... 89 Notification of Intention to take Carer s Leave... 90 3
Confirmation of Carer s Leave... 90 Return to Work... 91 Records... 91 Protection against Penalisation including Dismissal... 91 Disputes... 91 Jury Duty... 94 Absenteeism... 94 Casual Absenteeism / Short term... 94 Long Term Absenteeism... 94 Sick Leave... 95 Sample Sick Leave Record Form... 98 SECTION 4 PAYMENT OF WAGES... 99 Summary Points... 99 Wages... 99 Itemised Pay Statements... 100 Deductions... 100 Non Payment of Wages or Deficiency in Wages... 101 Frequency of Payment... 101 Disputes... 101 National Minimum Wage... 102 Minimum Hourly Rates of Pay... 102 Determining average hourly rate of pay... 102 Working Hours... 103 Reckonable and Non-Reckonable Pay... 103 Training / Study Criteria... 105 Records... 105 Redress... 105 Prescribed Courses Of Study or Training... 105 SECTION 5 DATA PROTECTION... 107 Definitions... 107 Legal responsibilities of a data controller... 108 4
Sample Data Protection Policy... 115 Request Procedure... 116 SECTION 6 HEALTH & SAFETY... 117 The Safety, Health and Welfare at Work Act 2005... 117 General duties of the employer... 117 Safety, Health and Welfare at Work (General Application) Regulations 2007... 125 Workplaces... 125 SECTION 7 EQUALITY AT WORK... 131 Pay Related Discrimination... 132 Work of Equal Value... 133 Discrimination in Specific Areas... 133 Advertising... 134 Harassment in the Workplace... 134 Vicarious Liability... 135 Equal Status Acts 2000 and 2004... 135 Harassment And Bullying In The Workplace... 136 Definition of Harassment... 136 Definition of Sexual Harassment... 136 Different Forms of Unwanted Conduct Constituting Harassment and Sexual Harassment... 136 Discrimination by the Employer... 136 Bullying in the Workplace... 137 Definition... 137 Examples of some forms of bullying, intimidation, harassment... 138 Examples of Sexual Harassment... 138 Outside the workforce... 139 Disciplinary Action... 139 Policy Statements for Harassment & Bullying... 139 Defence... 140 SAMPLE POLICY ON HARASSMENT AND BULLYING... 141 Definitions:... 141 SECTION 8 DISCIPLINARY & GRIEVANCE PROCEDURE... 146 5
Stage 1 - Verbal Warning... 146 Stage 2 - Formal Written Warning... 147 Stage 3-2 nd Formal Written Warning... 148 Stage 4 Suspension or Demotion or Dismissal.... 149 Gross Misconduct... 149 SPECIMEN DISCIPLINARY PROCEDURE... 151 First Meeting with Employee Counselling... 151 Second Meeting with Employee - Verbal Warning... 151 Third Meeting with Employee - Written Warning... 151 Fourth Meeting with Employee - Final Written Warning & Suspension... 152 Final Meeting... 153 GRIEVANCE PROCEDURE... 154 STAGE 1... 154 STAGE 2... 154 STAGE 3... 154 SECTION 9 TERMINATION OF EMPLOYMENT... 156 UNFAIR DISMISSAL... 156 Constructive Dismissal... 157 Probation/Training/Apprenticeship... 158 Notice to Employees of Procedure for Dismissal... 158 Dismissal Procedure... 158 Redundancy... 160 Summary Points... 160 Selection for Redundancy... 160 Offers of Employment on the right to Redundancy Payments... 161 Change of Ownership... 161 Calculating Service... 162 Calculation of Redundancy Payment... 162 Lay-offs and Short-time... 162 Minimum Period of Notice... 163 Time off to Look for Work... 163 6
Collective Redundancy... 163 Consultation with Employees' Representatives... 163 Provision of Information to Employees... 163 Redundancy Panel... 164 Notification to Minister for Labour... 164 SAMPLE REDUNDANCY LETTER... 165 Minimum Notice... 166 The Right to Notice... 166 Calculating Service... 166 Continuity of Service... 167 Rights of the Employee during the period of Notice... 167 Misconduct... 167 Lay off / Short time working... 167 Disputes... 167 SECTION 10 KEY EMPLOYMENT POLICIES... 168 Bullying & Harassment Policy... 168 Confidentiality Policy... 174 Internet & Email Policies... 176 Sample Internet Use Policy... 180 Internet Rules... 180 Sample Mobile Phone Policy... 182 Maternity & Additional Maternity Leave Policy... 183 Restrictive Practice Policy... 184 Smoking In The Workplace Policy... 185 Where will the exemptions apply?... 185 Social Media Policy... 189 Sample CCTV System Policy... 192 SECTION 11 INDUSTRIAL RELATIONS... 197 Workplace Relations Commission (WRC)... 197 Workplace Relations Reform - the Key Points... 197 Sample Induction Policy and Checklist... 199 7
INDUCTION PROGRAMME FOR NEW STAFF... 204 ITEMS TO COVER WITH EACH NEW EMPLOYEE... 205 Health and Safety, Security, Fire... 206 Index... 208 8
GUIDE TO EMPLOYMENT LAW INTRODUCTION In recent years, a significant amount of new legislation has been introduced as a result of societal re-evaluation of attitudes towards disability, equality and employment rights. As Employers, you have an obligation to ensure that you both understand and implement practices which are reflective of the constant changes within society as a whole. These changes come in many forms, and are generally accepted as being for the better, allowing as they do for business and industry to function effectively in a multicultural and equality-based Irish economy. This guide will help Employers understand the myriad of legislation that currently exists and will also assist in the on-going development of practices and procedures designed to lead to a harmonious work environment. Examples of important documentation, like Contracts, Terms and Conditions of Employment are included, as well as detailed guidelines on necessary procedures that should be adopted in order to comply with ever increasing levels of legislation. Niamh Heneghan HR & Member Services Officer ISME Revised: May 2016 9
SECTION 1 - RECRUITMENT & SELECTION SECTION 1 - RECRUITMENT & SELECTION The objective behind any recruitment and selection policy is to get the right person for the job with the appointment of the best candidate qualified for and suitable to the job. The selection procedure should therefore be based on both the job description and the objective requirements of the job. Discrimination In the case of any selection process companies need to ensure that they do not discriminate against one candidate over another. The Employment Equality Acts 1998-2015 (see section 7 on Employment Equality) make it illegal to discriminate on the following 9 specific grounds, Gender Civil status Race Religious belief Age Disability Family status Sexual orientation Membership of the travelling community. Discrimination is described as the treatment of a person in a less favourable way than another person is, has been or would be treated in a comparable situation under any of the nine grounds. Discrimination can take a number of forms including, (a) Direct discrimination Direct discrimination occurs when an employer treats a person less favourably than others on the basis of the nine headings outlined above. If an individual is asked questions at an interview which are related to one of the nine grounds this could be construed as discrimination. (b) Indirect discrimination Indirect discrimination is more common and arises when the same condition or requirement is applied, for example to both genders, but: (1) The ability of persons of one gender to comply is proportionately smaller than the other; and (2) It is not justified irrespective of gender. 10
For example, setting criteria for selection, which are to the detriment of women or persons from ethnic minorities because only a small proportion can apply. Vicarious Liability Generally employers are held responsible for the actions of their employees and this includes in the recruitment process. For instance an employer may become liable for discriminatory actions by employees actively involved in the recruitment and selection process. It is essential therefore that all staff are properly briefed with regard to all aspects of the company s recruitment and selection processes. Steps in the Recruitment & Selection Process Job Specification The starting point in any recruitment and selection process must be the completion of an accurate job specification analysis, which will allow you to evaluate a job and determine a number of factors about the role, e.g. What are the key tasks that need to be carried out? What are the skills and aptitudes required to undertake these tasks? When do these tasks need to be done? What are the competencies required to effectively undertake the role? The job analysis is the first step in determining what skills and experience will be required of the successful candidate for the role, and the outcomes from the job analysis will form the pillars of the Job and Person specifications used in the recruitment campaign. These should, in turn, form the basis for selection criteria used to screen candidates initial application forms as well as their subsequent performance at interview. It is important therefore to ensure that the requirements for the position are legitimate, and do not discriminate on any of the nine grounds, unless this could be objectively justified. When putting together the specification you should ensure that only those specifications that are absolutely essential in order to do the job adequately are used and never introduce criteria into a job description that is not necessary and could be deemed to be discriminatory. For example, if the position on offer requires job applicants to undertake tests, such as physical lifting, which are not relevant to the work in question, this may be deemed to be discriminatory against females or individuals with disabilities. Advertising the Position If advertising the position externally ensure that your advertisement does not indicate or could be construed as indicating an intention to discriminate. Any advertisement should contain the following: Employer s name and contact details 11
A brief description of employer The job title A brief outline of responsibilities and duties The location of work The level of experience required The required education/qualifications Best practice suggests that any advertisement should contain a statement to the effect that This Organisation is an Equal Opportunities Employer. However, an organisation displaying such a logo should ensure that their recruitment practices reflect the statement. When writing an advertisement due consideration should be given to the Employment Equality Acts, 1998-2015, and the Equal Status Acts 2000 2011. The Application Form If a company use application forms in the selection process consideration should be taken of the following: (1) Everybody who wishes to apply for the job can get an application form. (2) That the form does not contain questions that are either discriminatory or could be construed to be discriminatory. Where application forms are used, they should contain questions seeking only relevant information such as: General information (name, address, telephone number and e-mail address) Employment record Education/qualifications Skills and abilities Referees Job specific criteria (e.g. minimum educational qualification degree in finance related discipline) Due consideration should be given to the type of questions asked to ensure they are not discriminatory. Questions should never be asked relating to any of the nine grounds outlined above e.g. regarding marital status, or whether the applicant has children. Screening Candidates/Shortlisting This is the stage where it is decided what candidates are going to be called for interview. However, in order to reduce the risk of discrimination and to identify the best potential candidates, it should involve a systematic and careful comparison of each candidate s information against the pre-defined requirements of the job. A fair system of scoring each candidate should be established to ensure that discrimination does not become an issue. Following the completion of the screening process, the most highly ranked candidates should be called to interview, depending on how many people the organisation has decided to see. The most unsuitable candidates should be informed that they have been unsuccessful, and any candidates that fall in the middle may be retained for the moment 12
in case it is not possible to recruit from those initially identified as the top candidates. The reason why a person has not been selected should be recorded and kept with the applicant details in case of a claim being made at some future date. Interviewing After you have short listed candidates for the job the company will most likely set up interviews in order to garner further information about the candidates and to be of assistance in the final selection. To be fair and reliable interviews should have the following: Careful preparation. Prior to conducting an interview it is essential that adequate preparation is made including, - Understanding the overall role of the job being offered. - Designing appropriate questions and ensuring that they are not and could not be construed as discriminatory. (See page 6 for sample interview questions). - Outline in advance the appropriate answers to these questions. - If more than one interviewer, get agreement on how the interview will be conducted and that all interviewers are familiar with the role. Also assign question areas to each interviewer. - be familiar with applications/cvs of interviewees. Conducted by more than one person. As interviews can be quite subjective it is advised that interviews are conducted by more than one individual. Training. It is important that whoever is conducting the interview is trained in the process in order to avoid asking questions that could be deemed to be discriminatory. It is also good practice that these individuals are trained in order to help them to collect the required information about interviewees in order to establish the best candidate. An interviewer that is unsure of the structure of an interview may not help in establishing details from a candidate that would prove to be important for the job. Evaluation criteria. It is vitally important that a scoring scheme is in place that is agreed by all interviewers in order to help reach a decision on the best candidate for the job. It is also important in relation to being able to justify, if requested, why one candidate succeeded over another. Records. The documentation associated the interview, including interview notes and evaluation criteria, needs to be retained for a minimum of one year. Appointment Before making an appointment it may be appropriate to check the references provided by the successful candidate. Checking of personal and/or professional references should be 13
carried out to verify information attained at the interview. It is important to ensure that permission is sought prior to any reference being checked. This is not just best practice, but also a requirement under the Data Protection Acts 1998 and 2003. The recommended forms of reference check are by telephone or face to face discussion. Written references can be vague and uninformative. When satisfied with the references it is normal to notify the successful candidate by letter with the appointment often subject to the completion of a successful medical examination. NOTE: Right to Information Please note that under the Data Protection Acts 1988 and 2003 an unsuccessful candidate may request details from their interview, including interview notes. It is extremely important therefore that you maintain a record of all notes, questions and evaluation criteria for at least one year. There is no requirement, however, to disclose confidential information. Induction The aim of an induction program to enable staff to be introduced into a new post and working environment quickly, so that they can contribute effectively as soon as possible. The induction policy, associated procedures and guidelines aim to set out general steps for managers and staff to follow during the induction process. It is expected that all managers and staff will adhere to this policy. The Company expects that the implementation of good induction practice by managers/supervisors will: Enable new employees to settle into the Company quickly and become productive and efficient members of staff within a short period of time. Ensure that new entrants are highly motivated and that this motivation is reinforced. Assist in reducing staff turnover, lateness, absenteeism and poor performance generally. Assist in developing a management style where the emphasis is on leadership. Ensure that employees operate in a safe working environment. Will reduce costs associated with repeated recruitment, training and lost production. Common Job Interview Questions 14
Tell me about yourself." "Why do you want to work here?" or "What about our company interests you?" "Why did you leave your last job?" "What are your best skills?" "What is your major weakness?" "Do you prefer to work by yourself or with others?" "What are your career goals?" or "What are your future plans?" "What are your hobbies?" and "Do you play any sports?" "What salary are you expecting?" "What have I forgotten to ask?" Qualifications What can you do for us that someone else can't do? What qualifications do you have that relate to the position? What new skills or capabilities have you developed recently? Give me an example from a previous job where you've shown initiative. What have been your greatest accomplishments recently? What is important to you in a job? What motivates you in your work? What have you been doing since your last job? What qualities do you find important in a co-worker? Career Goals What would you like to be doing five years from now? How will you judge yourself successful? How will you achieve success? What type of position are you interested in? How will this job fit in your career plans? What do you expect from this job? Do you have a location preference? Can you travel? What hours can you work? When could you start? Work Experience What have you learned from your past jobs? What were your biggest responsibilities? 15
What specific skills acquired or used in previous jobs relate to this position? How does your previous experience relate to this position? What did you like most/least about your last job? Whom may we contact for references? Education How do you think your education has prepared you for this position? What were your favorite classes/activities at school? Why did you choose your major? Do you plan to continue your education? 16
Sample Offer of Employment Date Name Address Address Dear I am pleased to offer you an appointment to our staff. You are being offered a position in our department. Position/Title Your Position will be Your Manager will be This is a permanent position subject to the satisfactory completion of a probationary period. Location The company premises are at, where you shall be presently employed, however you may be relocated in the future and you will be given notice prior to this occurring. On your first day of employment with the company, you should report to at am/pm at the above address. Commencement Date Your appointment will commence on the and will not continue beyond your 65 th Birthday. (or some other agreed year) Duties Your duties will include and any other duties you may be assigned. Salary Your salary will be per annum, and will be paid monthly/weekly/ by cheque/direct debit etc. The Company reserves the right to deduct from your pay any sums which you may owe the Company including without limitation to, any overpayment or loans made to you by the Company or losses suffered by the Company as a result of your negligence or breach of Company rules. 17
Hours of Work The Company operates from to. Work hours are from to. You will be required to work hours per week. You will be rostered on a basis that will specify the days and hours you are required to work. You will be required to work days per week, which may include Saturdays and Sundays. You are expected to be cooperative in working outside these hours. Your hours of work may be changed at short notice and you are expected to comply with these changes. You will be given as much notice as is reasonably possible. You may be required to work overtime (that is in excess of hours). When this is necessary you will be given as much prior notice as possible. Break entitlements are in the morning and for lunch. Where, due to circumstances outside the control of the Company, there is insufficient work, the Company reserves the right to place staff on Lay Off or Short Time working. In such circumstances the Company will give as much notice as is practicable. Selection for Lay Off or Short Time working will be dependent on operational needs. Probationary Period You will be required to satisfactorily complete a six-month probationary period of employment. During the probationary period, employment may be terminated at the Company s absolute discretion. In such case you will be entitled to 1 week s notice, after the completion of 13 weeks service. The Company reserves the right to extend the probationary period, but in any case it will not be extended beyond 11 months. The company may if it wishes pay salary in lieu of notice and require that during such notice period you do not carry out any duties or attend at the work place. During the probationary period your performance will be evaluated and if successful the company will confirm the cessation of the probationary period. During the probationary period the provisions of the disciplinary procedure will not apply. Conditions Precedent It is a condition precedent of this offer of employment that the company receives satisfactory references and evidence of your qualifications. The company will request references from previous employers. These references must be on file prior to your commencing employment with the company. 18
You are also required to undergo a medical examination with the company s doctor. Confirmation of appointment will be dependent on the doctor confirming you are fit for employment. To arrange your pre-employment medical, please contact: Dr. secretary at: Address Phone Shift Premium The Company may require you to work shift or unsocial hours - in such case you will be paid a premium details may be obtained from your Manager. Sunday Premium If you work Sunday you are entitled to a Sunday premium of. Holiday Entitlements In addition to the statutory 9 public holidays, your holiday entitlements will be days per annum together with all statutory public holidays. It may be necessary for some staff to work public holidays. The holiday year runs from to and your full entitlement must be taken during this period. Only in very exceptional circumstances will un-taken holidays be carried forward to the next period. Holidays must be requested and approved in advance. 4 weeks notice must be given to management. No more 2 weeks annual leave may be taken at any one time except in exceptional circumstances and at the sole discretion of management. The Company will try to accommodate holiday dates, but the needs of the business may have to take precedence, particularly where inadequate notice is given. The Company reserves the right to nominate when holidays may be taken. In such cases at least one month s notice will be given. Public Holidays shall be given in accordance with the Organisation of Working Time Act, 1997. On termination of employment, holiday entitlement will be calculated to the nearest full month worked. If you have already taken holidays in excess of your entitlement, this will be deducted from your final salary. Illness If you are unable to come to work due to illness you must inform your, or the department within 1 hour of your starting time on the first day, giving some indication of the reason for absence and the likely date of return. If your absence is going to exceed two days you should forward a doctor s certificate to the company on the third day. 19
Certificates should be furnished on a weekly basis thereafter. Absence from work on Friday and the following Monday also requires a doctor s certificate. In the event of persistent absences due to illness, we may require you to be examined by a doctor appointed on our behalf. In any event, we reserve the right to have you medically examined at any time during employment for the purposes of establishing your fitness to work. Sick Pay The Company does not operate a sick pay scheme. The company therefore is not obliged to pay you during any absence on grounds of illness, and in such event you should avail of the appropriate Department of Social Protection benefits. Termination Notice of termination of employment by either you or the company will be (number of weeks) or such further period as may be required by the Minimum Notice and Terms of Employment Acts, 1973 & 2001. The company may if it so wishes pay salary in lieu of notice and require that during such notice period you do not carry out any duties or attend at the work place. Pensions Employees who have at least 6 months service in the Company can set up or contribute to a PRSA through payroll deductions. The Company has appointed as PRSA provider. Confidentiality All information not in the public domain acquired in course of your duties must be treated as confidential both during and after termination of your employment. You are required to sign the company s standard confidentiality and conflict of interest documentation. (NOTE this should accompany a contract of employment). See sample Confidentiality Agreement in Section 10. Exclusive Service During your employment you must devote your time, attention and skills exclusively to the business of the company and you must use your best endeavours to promote the interests, business and welfare of the company. You will not, during the continuance of your employment engage in other work or employment for any other party without the prior written consent of the company. You must avoid outside business relationships, or business dealings with any of the company s customers/competitors. Severability In the event that any of these terms, conditions or provisions or any part thereof shall be determined to be invalid and unlawful or unenforceable, such term, condition or provision or any part thereof should be severed from the remaining terms, conditions and provisions which shall continue to be valid to the full extent permitted by the law. 20
Dismissal Procedure Where the Company is considering the termination of employment the employee concerned will be advised of the reasons giving cause to consider this action and afforded the opportunity to respond to such reasons, before any decision is made. The employee will be advised prior to the meeting of the purpose of the meeting and, in the case of disciplinary action, be allowed to have a work colleague/representation with them if they so wish. Employees have the right to appeal any decision of dismissal to (Manager) further information is available in the Disciplinary Policy. Law Irish Law shall govern this agreement and disputes arising under or about it should be subject to the exclusive jurisdiction of the Irish Courts. Terms of Employment (Information) Acts 1994 & 2001 The provisions of this letter and appendices shall constitute notice to you of your terms and conditions of employment as are required to be given to you pursuant to the terms of Employment (Information) Acts 1994 & 2001. I enclose herewith staff handbook, which expands in detail the terms of your employment and should be read in conjunction with the terms of this letter of offer. You should retain this copy for future reference and note that it forms a part of the terms and conditions of your employment. I will be happy to go into more detail with you on the enclosed terms and conditions of employment if you wish and if you have any queries, please do not hesitate to contact me. Please acknowledge acceptance of this offer on the terms stated by signing and returning the enclosed copy of this letter. This offer of employment will remain open until pm on date. Yours sincerely, Manager (on behalf of the Company) Employee 21
SECTION 2 - TERMS OF EMPLOYMENT The Terms of Employment (Information) Acts 1994 & 2001, which have been in effect since 16 th May 1994, require employers to provide employees with a written statement of certain particulars of the employees terms of employment. The Contract of Employment - Summary Points The employer must provide the new employee with the written statement of employment terms no later than two months after his/her start date and to existing employees within two months of their requesting it. The Act in general applies to any person working under a contract of employment, apprenticeship, employed through an employment agency or in the service of the state. The Act has no application to any employment where the employee has been in the continuous service of the employer for less than 1 month. The statement must include- 1. Full names of the employer and employee. 2. Address of the employer. 3. Place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places. 4. Title of the job or nature of the work for which the employee is employed. A comprehensive job description should be attached. 5. Date of commencement of employment. 6. In the case of a temporary contract of employment, the expected duration or if the contract is for a fixed term, the date on which the contract expires. 7. Probation period. (Ideally 6 months outlining employers discretion to extend or to terminate employment during that period). 8. The rate or method of calculation of the employees remuneration. 9. Any terms relating to hours of work (including overtime). 10. Any terms relating to leave. 11. Pensions/Medical Scheme/Sick pay (only if applicable if sick pay is not provided this must be stated in the contract). The relevant details of the company s Personal Retirement Savings Account (PRSA) should be included. 12. Notice of termination of the contract of employment. 13. Any collective bargaining agreements. As an alternative to providing some of the details in the statement the employer may use the statement to refer employees to certain other documents containing the particulars, provided the document is accessible to the employee. 22
The Unfair Dismissals Acts 1977-2005 requires an employer to set out the procedures relating to Dismissal. This must be given in writing to each employee not later than 28 days after entering into a contract of employment. Moreover, the Unfair Dismissals Act lays the burden on the Employer to provide clear evidence justifying his actions if any staff member alleges Unfair Dismissal (see section 9 Termination of Employment ). Writing a Contract The introduction of a written agreement or contract for new employees may raise certain difficulties in some firms, particularly as regards any new terms and conditions of employment and existing industrial relations practice. In such cases, the Company is advised to state clearly that agreement on basic terms and conditions and dismissal procedures is legally necessary, and that the main purpose of the legislation is to increase the protection of employees themselves. However, the subject covered and the amount of detail in such agreements or contracts, and even their use at all in certain circumstances, will depend ultimately on the overall industrial relations climate in the Company. A practical illustration of such a document containing the prescribed information is given on Page 6 in this section. Contracts for a Fixed Term or Specified Purpose Contracts: Such contracts must be in writing and must be signed by both the employer and employee. The duration of the contract/specific purpose must be clearly stated. A clause, such as the one below, which states that the provision of the Unfair Dismissal Act shall not apply when the contract expires, must be included in the written contract. "As this is a fixed term/specific purpose contract, the provision of the Unfair Dismissal Act, 1977-2005, shall not apply to a dismissal consisting solely of the expiry of this contract "cessation of the purpose of this contract". This must be incorporated into a fixed term or specified purpose contract. Perpetual renewal of fixed term contracts upon expiry will result in all the successive contracts as being regarded as one continuous contract and will not be protected by the above clause. A clause excluding the terms of the Unfair Dismissal Act in a permanent employee's contract has no effect. NOTE: Employers should note that the use of successive Contracts of Employment for periods of less than 12 months, in order to avoid the impact of the Unfair Dismissals Acts, are made ineffective by the Anti- Abuse provision of the 1993 Unfair Dismissals Act. Where a person is reemployed within three months of a contract - all service will be deemed continuous. 23
You should also note that the perpetual renewal of fixed term contracts may be in breach of legislation. (See Fixed Term Employment page 26 in this section). Employees required to work outside the state Where an employee is required to work outside the State for a period of not less than one month, the employer is obliged to add certain particulars to the written statement and to provide the statement prior to the employee s departure. Particulars may include- - The period of employment outside the state. - The currency in which the employee is to be remunerated in respect of that period. - Any benefits in cash or kind for the employee attendant on the employment outside the state. - The terms and conditions, where appropriate, governing the employee repatriation. Changing the Contract A contract of employment need not be a fixed agreement and may be altered by several means. Change can be brought about by: - Legislation - Agreement between the employer and the individual employee concerned - Agreement between the employer and staff representatives - National Agreement. Any changes in the terms of employment must be notified to the employee, in writing, as soon as possible and not later than one month after the change has come about. Records A contract may be implied or expressed either orally or in writing. It is advisable to ensure that the contract be expressed in writing, signed and dated. The employer must keep a copy of the written statement for the duration of an employee s employment and for 1 year thereafter. Termination of Contract There are a number of circumstances whereby a contract may be terminated. - Resignation. The employee resigns from the employment and this terminates the contract. - Dismissal. A contract of employment is terminated either by the employer dismissing the employee for disciplinary or other reasons including gross misconduct, or the employee leaves the company referring to the work environment they have to work in, claiming they have no option but to resign. The latter is referred to as constructive dismissal. - End of fixed term/specified contract. - End of overseas assignment. 24
The Formation of Contracts In all contracts, not just employment contracts, there are always terms. These terms may be expressed or implied. Expressed terms are those which are agreed between the employer and employee either written or orally such as wages, holidays, hours of work, etc. Implied terms are the terms, which are usually not expressly agreed between parties. These are terms implied by Common Law, Collective Bargaining Agreements or by Statute. Common law duties of the employee Employees have been held to have the following implied duties to their employer a. To give personal service. In other words, employees have a duty to be ready and willing to carry out lawful duties in which they have been contracted to do during their agreed time. Under no circumstances can an employee tell another employee to perform their duties without the consent of their employer. An employer cannot direct an employee to carry out any duties which is unlawful. b. To obey lawful and reasonable orders. The employee must carry out orders as long as they are reasonable and in line with what they are contracted to do. However such orders must not place the employee in personal danger. c. To act with reasonable care and skill. Employees must perform their duties with care and carry out their duties with the skills they claim to have, diligently and efficiently. d. To be loyal to their employer s business. Employees must act honestly and uphold the interest of their employer s business and property, they must not accept bribery or make secret profits and disclose any activities made using the facilities of their employer. e. Maintain secrecy. Employees must not disclose confidential material obtained through the course of their work or as a result of their employment. Neither must they exploit their employer s trade secrets or customer contacts. However, information may be disclosed if it is in the public interest to do so, or if it is information disclosed to someone who has a proper interest to receive it. f. Indemnity. To compensate their employer. Employees may be liable to repay their employer for any loss/damage occurred as a result of a wrongful act. Should this occur the employer must ensure there is evidence of manipulation or wilful misconduct on the employee s part. Common Law Duties of the Employer In the absence of any specific provisions in the contract of employment, the employer will then have the following implied obligations to an employee. 25
a. To provide work Generally there is no duty towards the employer to provide work for the employee as long as the employer continues to pay the agreed wages. Exceptions to this are as follows 1. Where payment is by commission or on a piecework basis the employer must give the employee a reasonable opportunity to earn it. 2. In the case of a highly skilled worker who needs to be allowed to maintain and develop his/her skills and whose reputation depends on his/her being active in his /her work. b. To pay wages or remuneration. 26
Sample Contract of Employment This is a Contract of Employment between: (Employee Name) (Employee Address) and (Employer Name) (Employer Address) (herein after referred to as the Company ) Position You will be employed as. You will be required to be flexible in this role and undertake any such duties assigned to you by the company. Such duties may fall outside the remit of your normal working duties. Commencement Date Your employment with the Company shall commence on. Remuneration Your remuneration will be.. gross per annum. Payment will be made by BACS (direct transfer into your named bank account, and made monthly in arrears. The management reserve the right to deduct at source any overpayment of salary or monies owed in consultation with you. (Details of any commission and / or bonus payment mechanisms should be included here). Any additional lump sum payments made by the company over the course of your employment will be subject to further terms and conditions. Should these terms and conditions fail to be met, the company reserve the right to recoup a percentage or the total amount. Line Manager You will be reporting to...or any such individual as is expressly communicated to you during the course of your employment. Hours of work Your normal hours of work will be from... a.m. to..., Monday to Friday. (If shift work is appropriate include full details here). Some degree of flexibility may be required and you will be expected to work appropriate hours in order to carry out your responsibilities. However, it is the policy of the Company that as far as possible, extensive working hours above the norm will not occur in accordance with the European Working Time Directive. Rest breaks will be granted in line with the Organisation of Working Time Act 1997 and will be as follows. 27
Place of Work You will be required to work in.. Some degree of flexibility may be required as you may be required to work in a variety of locations as and when work demands. Probation There will be a probationary period of...months. The management reserve the right to extend the period of probation if necessary. However, on satisfactory completion of this period your employment will be confirmed. Notwithstanding the company s right to extend your probation, your probationary period will not be in excess of one year. The normal disciplinary process will not apply during the probationary period. Should either party wish to terminate the employment during this period, the notice period given will be in accordance with current employment legislation. Service Notice 13 weeks -2 Years 1 week 2-5 years 2 weeks 5-10 years 4 weeks 10-15 years 6 weeks over 15 years 8 weeks Holiday Entitlement The company s holiday year runs from to... Your paid holidays will be working days per year. (Restrictions on when annual leave cannot be taken or the amount of leave to be taken at one time should be mentioned here). Under no circumstances may any holidays be carried forward into the next holiday year without prior arrangement. Any employee absent from the workplace by reason of certified sick leave will continue to accrue and retain annual leave entitlement. Should the employee be unable to take annual leave during the relevant leave year, an annual leave carryover period of 15 months after the leave year will apply. Should the employment be terminated during this time payment in lieu of untaken annual leave will be provided. After this 15 month carryover period, all unused annual leave will be lost. When a termination of this contract occurs and the paid holidays already taken exceed the paid holiday entitlement on the date of termination, the company will deduct the excess holiday pay from the final pay amount. Notice of Holidays You must give not less than weeks advance notification of those dates and periods on which holidays will be taken. 28
All holidays must be agreed with your manager prior to holiday arrangements being confirmed. The company will bear no responsibility for any financial loss resulting from bookings made without prior agreement with your manager. Public Holidays Your entitlement to public holidays is as follows: Christmas Day May Day St Stephen s Day June Bank Holiday New Year s Day August Bank Holiday St Patrick s Day October Bank Holiday Easter Monday During a period of certified sickness absence, public holiday benefit will normally be accrued for the first 26 weeks of absence only. Absence If, for any reason other than exceptional circumstances, you are absent from the Company s employment or unable to carry out the full duties of your employment, you must contact the company within 30 minutes of your normal start time on the first day of such absence. Failure to do so will result in your absence being classed as unauthorised. An original certificate from a qualified Medical Practitioner must be submitted to (named manager) on the third day of continuous absence and on a weekly basis thereafter. Copies will not be accepted. The Company reserves the right to have you examined by its own Medical Practitioner. Any employee who is absent through unauthorised or uncertified absence will be requested to attend a disciplinary investigation meeting and could face sanctions up to and including dismissal. The company does not pay employees who are absent due to illness. Accordingly, you may need to submit a claim to the Department of Social Protection, after 6 days of illness. Please refer to the company absence policy for information on unacceptable levels of absence. (If no absence policy exists please include reference to number of days/occasions that may warrant disciplinary action here). Pension Scheme The company operates an Occupational Pension Scheme / a Personal Retirement Savings Account (Number...) (Delete whichever does not apply). Employee s who wish to make contributions to a PRSA, should contact... who will advise you of the company s PRSA operator. Retirement Age The retirement age for employees is 65 years. Employees will be contacted 6 months prior to their reaching the retirement age to discuss issues around your retirement from the company. 29
Reduced Working Hours The employer reserves the right to reduce your working hours, where through circumstances beyond its control it is unable to maintain you in full-time or your regular hours of employment. You will receive as much notice as possible prior to such lay off or short time period commencing and you will be paid only in respect of hours actually worked during that period. Grievance & Disciplinary Procedure In the interests of fairness and justice and to ensure the proper conduct of business, certain provisions to deal with matters of grievance and discipline are necessary, as follows. Grievance Procedure If you have any grievance, which you consider to be genuine in respect of any aspect of your employment, you have a right to a hearing by your immediate superior or the Personnel Manager as the circumstances warrant. If you are unhappy with the outcome of the hearing you may appeal to the Chief Executive. A fellow work colleague may accompany you to this appeal hearing. In the event of the matter not being resolved internally the matter shall be referred through normal industrial relations procedure. The procedure referred to above shall include reference to the Workplace Relations Commission. Disciplinary Procedure The company reserves the right to take disciplinary action on the grounds of a breach of a contractual or established work rule, poor performance/capability, misconduct, gross misconduct or absence. Disciplinary action can result in the issuing of an informal or formal warning, suspension with or without pay, transfers to other duties and loss of privileges. Ultimately, persistent breaches or inadequate work performance can lead, following warnings to dismissal. The following stages of a disciplinary will normally apply: Stage 1: Informal Warning Stage 2: Verbal Warning Stage 3: First Written Warning Stage 4: Final Written Warning Stage 5: Dismissal The Company reserves the right to invoke the disciplinary procedure at any level taking into account the severity of the infringement. Certain grave breaches can lead following considerations of all the circumstances by the company to summary dismissal or suspension pending investigation. In all dismissal cases, full investigation will be carried out, and you will have the right to put your case and be accompanied by another staff member or appropriate representative, and the right to appeal against a decision to a more senior management. In the event of your dismissal being confirmed and should you wish to challenge the dismissal then in accordance with normal procedures, the matter shall be referred to the Workplace Relations Commission. 30
Please refer to your Company Staff Handbook for further information on this and other policies and procedures relevant to your employment. Notice In the event that either the company or you wish to terminate this contract, notice to be given shall be in accordance with the current employment legislation. Service Notice 13 weeks -2 Years 1 week 2-5 years 2 weeks 5-10 years 4 weeks 10-15 years 6 weeks over 15 years 8 weeks Notice must be provided in writing and submitted to (Named Manager). Nothing in this agreement shall prevent the giving of a lesser period of notice by either party where it is mutually agreed. In the event of your contract being terminated on the grounds of gross misconduct you will not be entitled to any notice. Restrictions During the period of this contract, you will devote the whole of your time and attention to the business of the Company and you undertake that during the period of this contract you will not engage in any other activity which is likely to prejudice your ability to serve the company, nor will you engage in any business activity which may cause a conflict of interest with the business of the company. You will not at any time either during the period of this contract or after its termination make use of or communicate, any of the trade secrets or confidential information of the Company which you may have obtained whilst in the service of the Company. Any discovery, invention or process made or discovered by you whilst in the employment of the Company and relating to the business of the Company will remain the property of the Company and must be disclosed to the Company, and you undertake to join with the Company at any time in applying for letters, patent or other appropriate licence for such discovery, invention or process. Staff Handbook (if issued) If you have been issued with a staff handbook, your attention is drawn to the policies contained therein, which together with this contract form the terms and conditions of your employment. Changes to this Contract Changes in the terms and conditions of this contract will be notified to you, following consultation and agreement, before the date of proposed change. 31