How Employers Can Avoid Expensive Employment Law Claims by Employees-7 Steps

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.

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Employers-How to Avoid Costly Employment Claims

The Truth About Amending the Terms of Employment in Ireland

Employment contract
Employment contract

Terms and conditions of employment – are employers entitled to unilaterally vary such terms and conditions?

In short, the answer is no.

Firstly though, lets take a look at what are the terms and conditions of employment and how they arise.

Terms And Conditions of employment

An employee’s terms and conditions of employment may be a mix of those terms that are

  • clearly set out in his/her contract,
  • those implied by custom and practice and the employer’s duty to act reasonably,
  • those which are incorporated through collective agreements and
  • those which derive from statute (such as the right to minimum wage or annual leave) which apply automatically.

(This is part of the employment law in Ireland series of articles)

Amending terms and conditions of employment-historically

Where an employment contract does not expressly enable the employer to vary the terms of employment, employers may either:

1. Obtain the employee’s express agreement to the change (recommended);
2. Terminate the employee’s employment on due notice and offer re-engagement on new terms (not recommended); or
3. Attempt to impose the change unilaterally (not recommended).

Options 2 and 3 above are not recommended and leave the employer at significant risk to a successful claim for unfair/constructive dismissal/non payment of wages claims.

Unilateral variation of an employee’s terms and conditions of employment to the employee’s detriment may give rise to:

1. A claim of constructive dismissal under the Unfair Dismissal Acts 1977-2007 or at common law;
2. A claim for damages for breach of contract;
3. A claim in respect of an unlawful deduction under the Payment of Wages Act 1991;
4. A “trade dispute” under the Industrial Relations Acts 1946-2004,
5. Industrial relations issues, and
6. Injunctive proceedings to prevent the unilateral variation.

What is contractual, and not merely a work practice, may not be varied unilaterally.

Such variation must be agreed between the parties regardless of whether the term is express or implied.

In practice, whether or not an employee benefit constitutes a term or condition of employment may be somewhat academic if changing it is likely to give rise to industrial relations issues and human resources problems.

In Neville v Waters Munster Glass Ltd RP558/2003, the claimant, having refused to accept a reduction in salary and to work a reduced three day week, was consequently made redundant.

Although the claimant argued that he had been unfairly dismissed, the tribunal held that a genuine redundancy situation existed.

It is clear from a UK case, GAP Personnel Franchises Ltd v Robinson UKEAT/0342/07, that where employees do not accept a unilateral variation by the employer, especially one that has an immediate impact (e.g. the reduction in pay or benefits), they should make it clear, preferably in writing, that they do not accept the change and are working under protest.

Otherwise the employee may eventually be held to have implicitly accepted the change.

Variation of terms and conditions of employment in a recession

With unemployment rising to a rate of 8.3% and FÁS forecasting that this rate will exceed 12% during 2009, resistance to changing terms and conditions was low.

There has been no change in the legal requirement to obtain employee consent for such variation, however many employees are accepting paycuts where they are being implemented in a genuine effort to avoid job losses and to try to ensure the employer’s survival.

However, it is significant to note that workers opting to accept a paycut, in order to avoid the threat of job losses, may find themselves being made redundant if the employer is ultimately forced to close down.

The statutory redundancy payment is based on the employee’s current wage which will mean a lower statutory severance package than the employee would have received on the previous higher wage.

Amending terms of employment in Practice

In the course of varying terms and conditions employers should:
1. Maintain clear communication with employees;
2. Provide employees with reasonable notice of any variation to terms and conditions;
3. Be able to explain why the change is necessary and inform the employees of the alternative (i.e. a more formal re-structuring and ultimately possible job losses);
4. Consider whether the new terms can be imposed in stages as opposed to implementing all variations at once. This may help to ease the transition and allow employees to plan for the change; and
5. Consider whether an incentive can be suggested to assist employees in accepting the change. This does not necessarily have to be a financial benefit.

You might also be interested in changing the employment contract and how to reduce employees’ wages.

Employment law in Ireland

For a more in depth look at employment law in Ireland, and how it impacts employers and employees, check out our website EmploymentRightsIreland.com