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holiday entitlements

Annual leave, like minimum rest periods for employees, is covered by the Organisation of Working Time Act, 1997.

how-to-calculate-holiday-pay

The first thing to note about annual leave is that all employees are entitled to paid holidays/annual leave. There is no qualification requirement and part time employees are also protected by the Protection of Employees (Part Time) Work act, 2001. The best way to deal with holidays for part timers is to give them holidays on a pro-rata basis with their full time colleagues.

 

How to Calculate Holiday Entitlements

The relevant section of the Organisation of Working Time Act, 1997 is section 17. It states:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.
(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Source: www.irishstatutebook.ie

As you can see there are a number of different methods of calculation. However you must use the one which gives the employee the biggest entitlement.

In summary therefore all employees are entitled to:

  • 4 working weeks where at least 1365 hours have been worked in the leave year OR
  • One third of a working week where the employee works at least 117 hours in a calendar month OR
  • 8% of the hours worked in a leave year (subject to a maximum of 4 working weeks)

Note 1: the maximum entitlement is four of the employee’s normal working weeks and NOT twenty days; this can be significant because the “working week” itself is not defined in the Act and must be construed by reference to the number of days/hours encompassing a work cycle.

Note 2: pay must be paid in advance of the annual leave.

Note 3: periods of sick leave are not counted as hours worked but parental and maternity leave are.

Examples

(a)    4 working weeks where the employee works at least 1,365 hours in the year

Sheila works a 39 hour, 5 day week.

She has worked 1400 hours at the end of September. As this exceeds 1,365 hours she is entitled to 4 weeks paid holidays.

Her normal working week is 5 days. She is entitled therefore to 20 days (4 weeks @ 5 days) paid annual leave.

(b)   One third of a working week per calendar month in excess of 117 hours

Michael works a four day week at 39 hours per week.  This is in excess of 117 hours per month (over 600 hours in fact).

So Michael accumulates annual leave at a rate of 1.34 (one and one third) days per month worked, that is, one third of four days = 1.34.

In a full year (12 months) Michael will accumulate 1.34 * 12 = 16.08 days annual leave.

( c) 8% of the hours worked

Jonathan works for 8 weeks and did 200 hours over the 8 weeks and then quit.

Jonathan is entitled to 8% of hours worked, that is, 16 hours of paid leave which he is entitled to receive when leaving the employment.

NOTE: if more than one of these methods of calculation is applicable, the employer must use the method which gives the greatest entitlement.

What if the employee gets sick during annual leave?

If the employee provides a sick certificate then his leave should not be counted for the days of his certificate and the employees will be allowed carry over his leave, even where it takes him/her into another leave year.

Timing of leave

The employer can decide when annual leave can be taken. By the same token it is the employer’s responsibility to see that the employee takes his/her full entitlement within the leave period.

Leave must be given and taken within the leave year unless the employee consents to getting leave in the first six months of the following leave year. Any leave not taken is forfeited.

How much pay?

Annual leave is paid leave and the obligation is to pay the normal weekly rate of pay. A statutory instrument, 475/1997 sets out in detail how to calculate payment which will depend on a number of factors and need to account for bonuses (may be included), allowances (may be included), and overtime (not included).

How to Calculate Holiday Pay

Firstly, if the employee is paid by reference to a salary or a time rate, the amount due for one week of annual leave will be the amount paid to him/her for a normal working week prior to the commencement of holidays.

This payment includes any regular allowance and bonus but does not include overtime.

Secondly, if the employee is not paid by reference to a time rate but by reference to commission or a piece or productivity rate, then his/her holiday pay for one week of annual leave is calculated by reference to the average pay for that employee calculated over the 13 weeks immediately prior to taking leave.

Public Holiday Pay

For an employee who is normally required to work on the day on which a public holiday falls

If the employee’s pay is calculated by reference to a time rate or salary, he is entitled to a day’s pay according to his normal daily hours prior to the holiday;

If the employee’s pay is calculated by reference to a piece rate or commission, he is entitled to the average daily pay calculated over the 13 weeks prior to the public holiday.

For an employee who is not normally required to work on the day on which the public holiday falls

If the employee’s pay is calculated by reference to a time rate or salary, he is entitled to pay equivalent to one fifth of the normal weekly hours last worked before the holiday;

If the employee’s pay is calculated by reference to a piece rate, he is entitled to one fifth of the average weekly pay calculated over 13 weeks prior to the public holiday.

Losing the job?

The employee is entitled to compensation for any leave that they have not taken in the leave year.

 

Public Holidays

Public holidays in Ireland are set out in the act as follows:

1. Each of the following days shall, subject to the subsequent provisions of this Schedule, be a public holiday for the purposes of this Act:
(a) Christmas Day,
(b) St. Stephen’s Day,
(c) St. Patrick’s Day,
(d) Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August,
(e) the last Monday in October,
(f) the 1st day of January,
(g) any other day or days prescribed for the purposes of this paragraph.
2. The Minister may by regulations vary paragraph 1 by substituting for any day referred to in that paragraph another day.
3. An employer may, for the purpose of fulfilling any relevant obligation imposed on him or her by this Act, treat as a public holiday, in lieu of a public holiday aforesaid, either—
(a) the Church holiday falling in the same year immediately before the public holiday, or
(b) the Church holiday falling in the same year immediately after the public holiday or, if the public holiday is a day which is a public holiday by virtue of paragraph 1 (b), the 6th day of January next following,
by giving to the employee concerned notice of his or her intention to do so not less than 14 days before the Church holiday (where that holiday is before the public holiday) or before the public holiday (where that holiday is before the Church holiday or, as the case may be, the said 6th day of January).
4. Each of the following days shall be a Church holiday for the purposes of paragraph 3:
(a) the 6th day of January, except when falling on a Sunday,
(b) Ascension Thursday,
(c) the Feast of Corpus Christi,
(d) the 15th day of August, except when falling on a Sunday,
(e) the 1st day of November, except when falling on a Sunday,
(f) the 8th day of December, except when falling on a Sunday,
(g) any other day or days prescribed for the purposes of this paragraph.

Public holidays confer public holiday benefits on employees and the employer has a choice of

  1. A paid day off on that day
  2. An additional day’s pay
  3. An additional day of annual leave
  4. A paid day off within a month of that day.

How much you are entitled to be paid will be roughly similar to the calculation of annual leave pay as set out in SI 475/1997, Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Complaints

A claim may be brought in the first instance to a Rights Commissioner (within 6 months of alleged breach, 12 months allowed in exceptional situations) and thereafter appealed to the Labour Court.
If you have a question or concern, please use the contact form below. We respond within 24 hours, guaranteed.
Employers-How to Avoid Costly Employment Claims

By Terry Gorry Google+

Filed under Employment Law #

If you are an employer you are in danger of leaving yourself wide open to expensive claims by your employees should you fail to follow some basic but essential steps in your employment relationship with your employees.

 

employment-law-claims

In addition to settling successful claims brought by employees you also run the risk of fines and other sanctions from the National Employment Rights Authority (NERA) which has a dedicated unit, the Prosecution Services Unit, which can refer cases to the Chief State Solicitors Office for prosecution.

 

There is a wide body of employment legislation in force in Ireland which can be confusing, complex, and impenetrable for many employers.

 

In addition some industries have their own industry specific agreements called registered employment agreements (REA) and minimum wage rates. It is worth noting that these registered employment agreements are binding on all parties once registered with the Labour Court.

 

Minimum requirements in employment law

1. Written statement of certain terms and conditions of employment

This statement must be given to the employee within two months of commencing employment. The relevant act is the Terms of Employment (Information) Act 1994 which sets out the basic information that an employee is entitled to be given in writing about their contract of employment

 

2. Written statement of pay

 

3. The minimum wage

There are exceptions to the minimum wage in Ireland of €8.65 per hour but most adults will be entitled to it; in addition certain industries have their own higher minimum wage.

 

4. Maximum hours worked

Employers must keep records of hours worked by employees to ensure compliance with the maximum working week average of  48 hours which may be calculated over a 4, 6 or 12 month period depending on the industry

 

5. Working time and breaks

The breaks to which employees are entitled are set out in the Organization of Working Time Act, 1997. Currently break entitlements are 15 minutes per four and a half hours work and a 30 minute break for six hours worked.

 

6. Holiday entitlements

Holiday entitlements are also covered in the Organization of Working Time Act, 1997. In general full time workers are entitled to four  paid weeks holidays per year with part timers being entitled to similar holidays on a pro rata basis depending on hours worked which equates to one third of a week per month worked.

 

7. Minimum notice of termination of employment

The minimum notice periods are set out in the Minimum Notice and Terms of Employment Acts 1973 to 2001 and depend on the length of service with the minimum regardless of service being 1 week.

 

Employers Obligations to Employees

Employment rights for employees in Ireland are provided for by a very extensive range of legislation, statutory instrument, regulation, EU directive, and decided decisions in the courts.

These rights fall under a wide range of headings such as

  • information that needs to be provided by the employers after the commencement of employment under the Terms of Employment (Information) Act 1994
  • termination of employment
  • redundancy
  • leave/holidays
  • working time
  • health and safety law
  • grievance procedures and disciplinary procedures
  • changing the contract of employment
  • payment of wages
  • rest periods
  • statutory periods of leave such as maternity leave
  • equality and anti discrimination laws
  • and so forth.

 

It is advisable for employers to consult a  legal professional in relation to their obligations as employers because it is very easy to transgress and infringe the employees’ rights. This page will give you a list of articles covering many of the main issues and common problems that arise in the employment relationship. However it is not an exhaustive list and if a problem arises in the workplace do seek professional advice or contact NERA.

For small business and entrepreneurs in Ireland, it is critical that they are aware of the law covering termination of employment and safety in the workplace for employees.

Our sister site, http://EmploymentRightsIreland.com, has more comprehensive information about employment law in Ireland.

 

Termination of employment covers such areas as redundancy, dismissal, unfair dismissal and the procedures that must be employed by the employer. Some vital areas to consider before offering an employment contract is how the contract will be terminated where necessary.

Safety at work

There are equally onerous obligations when it comes to providing safety at work for his/her employees.
The law surrounding safety at work in particular has given very strong powers to health and safety inspectors to carry out inspections in the workplace…….
……..and initiate prosecutions if they choose to do so. Which can result in criminal penalties.

The consequences of a criminal record for any small business owner should not need to be spelled out. And the provision of safety at work is a moral as well as legal obligation.

 

Termination of employment

In the Ireland of the last few years termination of employment as a result of the downturn and the need to seek redundancies is a feature of many workplaces.

 

But an understanding of how to proceed with redundancy, legally, is critical…….

 

Because the penalties that can be imposed for unfair dismissal and ‘fake’ redundancy can be very costly. It does not have to happen if you have a basic understanding of how to terminate employment legally.

 

There are many other occasions when an employer will need to terminate the employment of an employee. Not to follow the correct procedure will prove to be a costly and needless expense for your small business. Learn more about employment law in Ireland.

 

Conclusion

Employers can save themselves the considerable costs in money and time involved in defending or otherwise dealing with claims by their employees by some prudent management and housekeeping.

Doing business nowadays can be a fraught enough activity without inviting needless trouble on yourself for the want of a straightforward contract of employment and/or letter of offer and/or statement of your employees’ terms and conditions.

At a minimum you should carry out an audit of your

  • Contracts of employment
  • Staff handbooks
  • Disciplinary and grievance procedures
  • All workplace policy documents.

If you have a question or concern, please use the contact form below. We respond within 24 hours, guaranteed.

Employers-How to Avoid Costly Employment Claims

By Terry Gorry Google+

Filed under Employment Law #