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

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

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

4. Sources of Irish Employment Law
Employment Contract
Staff Handbook, Policies, Procedures
Irish Constitution 1937
Irish & EU Legislation
Irish and EU case law
Collective Agreements
Registered Employment Agreement
Social Partnership Agreements
Custom and Practice
International law
Sources of the rights, duties and obligations of the employer and the employee which make up the employment relationship. Regardless of what it says in a contract of employment of the terms and conditions of employment, we need to look at obligations under the law. Terms can not be less favourable that what is required by law.
We’re not going to go through all of these but a few worth comment are as follows:
Employment Contract
Irish & EU Legislation (notable “Codes of Practice”)
Social Partnership “Towards 2016”
A combination of all of the above make up the rights under legislation for employees

5. Employment Contracts & Staff Handbooks
Verbal
Written
Express Terms
Implied Terms
By the Constitution
By legalisation
By custom and practice
By the courts
Best practice is to have a WRITTEN CONTRACT, however no legal obligation for one.
Obligations under law are:
1994 Terms of Employment and Information Act states that an employer must provided certain terms and conditions in writing
The Unfair Dismissals Act requires that you provide the company procedure in writing.
Verbal causes difficulties regarding proof of what was agreed.
Custom & Practice (e.g. flexi arrangements)
Best Practice:
Also best practice would say to have a STAFF HANDBOOK and to have a document relation to H&S.
Discuss contents of a staff handbook (use landmine concept poster). Show SAMPLE contents page.
It is advisable to make any breach of H&S a disciplinary procedure in the contract of employment..
We’ll back to this later

6. Irish Law and EU Legislation -Codes of Practice
Code of Practice on Harassment & Sexual Harassment, Equality Authority.
Code of Practice on the Preventing of Workplace Bullying. Health & Safety Authority.
Code of Practice Detailing Procedures for Addressing Bullying in the workplace.
Code of Practice on Access to Part Time Working
Codes of Practice are not actual law per se BUT employers actions will be measured against them.
Best practice to ensure your policies and procedures and in line with the codes of practice.
Also just to mention SOCIAL PARTNERSHIP AGREEMENTS. Originally concentrated on pay but has significantly expanded. Towards 2016 – Ten year Framework Social Partnership Agreements There is a commitment by government to deal with compliance i.e. enforcement of Employee Rights legislation. Initial steps to set up this Authority has already taken place.

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

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

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

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

11. Contracts of Employment
Written statements of terms and conditions must be provided to include, at a minimum, the following:
Full names
Registered offices
Place of work
Job title
Start date
Termination date if fixed term or length of contract if temporary or specified-purpose
Pay rate, calculations and pay period (e.g. weekly, monthly…)
Rest periods required by law
Hours of work
Details of paid leave
Sick pay and pension arrangements
Notice period to be given by either side
Details of any collective agreements

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

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

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

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

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

17. Wages
Acts
Payment of Wages Act 1991
National Minimum Wage Act 2000
Pensions Act 2002
Every employee is entitled to a confidential written statement of gross pay, deductions (e.g. PAYE and PRSI) and net pay
Employers are obliged to facilitate the employee paying into a PRSA
The Minimum Wage is €8.65 (since July 07)
The Payment of Wages Act 1991:
Entitlement to pay slip
Lawful deductions (PAYE, PRSI)

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

19. Statutory Leave Leave Type Length of Leave Paid/Unpaid Maternity Leave
26 Weeks
16 additional weeks
Unpaid
Adoptive Leave
24 weeks
16 additional week
Parental Leave
14 weeks
Blocks of 6 weeks
Emergency Family Leave
3 days in 1 year
Max in 3 years
Paid
Carer’s leave
104 weeks
Minimum of 13 weeks

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

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

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

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

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

25. New staff and UD Act Unfair Dismissals Act, 1977 - 2001
Sets out legal framework
Statutory Instrument 146/2000
Code of Practice on Grievance and Disciplinary Procedures
Sets out how process is applied
Must have 1 year’s service
Notice counts as service!
Maternity, equality and union are covered from Day 1
You must have a grievance and disciplinary procedure in writing and it MUST be COMMUNICATED to employees
A policy on IT use is becoming increasingly important. It an area of increasing problems.

26. New staff and UD Act Notice begins after 13 weeks
Unless contract allows for greater period
Must take care to ensure payment of all notices and leaves
Unless case of gross misconduct
Should always treat staff as if they can be subject to UD Act
Little effort now prevents problem later
Duration of Employment Notice Required
13 weeks – 2 years 1 week
2 years – 5 years weeks
5 years – 10 years 4 weeks
10 years – 15 years 6 weeks
15 years – or over weeks

27. New staff and UD Act Rules of Natural Justice
The right to be fully informed of the allegations being made
The right to have his/her case heard
The right of reply
The right to question and to call witnesses
The right of innocence until proven guilty
The right to representation
The right of appeal
Courts will look at application of these irrespective of length of service
Duration of Employment Notice Required
13 weeks – 2 years 1 week
2 years – 5 years weeks
5 years – 10 years 4 weeks
10 years – 15 years 6 weeks
15 years – or over weeks

28. Section 29 Industrial Relations Act
New staff and UD Act
Section 29 Industrial Relations Act
Gives right for employee to have case heard
Can have less than 12 months service
Outcome is only binding on employee
Temptation is to ignore proceedings
Bad publicity for employer
Always should present case
Can avoid ruling if dismissal is with cause
Duration of Employment Notice Required
13 weeks – 2 years 1 week
2 years – 5 years weeks
5 years – 10 years 4 weeks
10 years – 15 years 6 weeks
15 years – or over weeks

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

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

31. Termination of Employment (overview)
Acts
Minimum Notice and Terms of Employment Act 1973 – 1991
Organisation of Working Time Act 1997
Unfair Dismissals Act 1977 – 1993
Redundancy Act 1967 – 2003
A contract may specify the amount of notice that the employee is entitled to in the event of being let go
A minimum period of notice applies for employees with 13 weeks service or more…
Duration of Employment Notice Required
13 weeks – 2 years 1 week
2 years – 5 years weeks
5 years – 10 years 4 weeks
10 years – 15 years 6 weeks
15 years – or over weeks

32. Disciplinary Guidelines32

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

34. Discipline Management

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

51. Resources Web sites National Employment Rights Authority (NERA) IBEC
Equality Authority
Department of Enterprise Trade & Employment
Health & Safety Authority
Labour Relations Commission
Small Business enterprise