EMPLOYMENT LAW

Mark Fielding ISME

Jan/Feb 2015

• R E C R U I T M E N T

• C O N T R A C T S

• L E AV E

M AT E R N I T Y

PA R E N TA L

PAT E R N I T Y

S I C K

Do not discriminate on the 9 grounds when:

• Selecting people for interview (note on cv why not selected)

• Using discriminatory vetting procedures

• Asking discriminatory questions

• Offering terms & conditions, eg. male & female

RECRUITMENT

Recruitment Discrimination:- Employment Equality Act 1998-2004

– Sex – Marital Status – Race – Religious Belief – Age – Disability – Membership of Travelling Community – Family Status

– Sexual Orientation

RECRUITMENT

Contracts: The Basics • Every Employee is entitled to a written contract of

employment, and this should be issued within the first month of engagement.

• The contract contains basic details of the job & title, who does the employee report to, the rate of pay, holiday entitlement, location & hours of work, pension and benefits (if any), notice and termination and a description of their responsibilities.

• Contracts also contain brief clauses about Absence procedure due to illness, Confidentiality, Data Protection and Discipline & Grievance Procedure.

Contracts • Contracts can be issued in a number of formats:

• Fixed Term Contracts

- Issued for specific periods only

• Temporary Contracts

- Issued for open-ended temporary work

• Full-Time Contracts

- Issued for open-ended standard employment

• Part-Time Contracts

- Issued for open-ended part-time employment

Contracts

• The basic details of all contracts are the same, except:

• Fixed Term Contracts must state when the contract will terminate i.e. the date of engagement is from (date) and will end on (date).

• Temporary Contracts

must state what will

cause the contract to

terminate i.e. “when

the work is completed”

Contracts • Contracts are signed by Employee and Employer

and each receive a copy.

• The contract can be backed up by a Company or Staff Handbook, which contains policies and procedures in greater detail, such as:

• Equality

• Bullying & Harassment

• Social Media

• Dress Code

• Discipline & Grievance Procedure (in full detail)

• Leave types and entitlements (in full detail)

Contracts • Together the Contract and the Company or Staff

Handbook form the Terms & Conditions of Employment – a binding contract between the Employer and the Employee.

• These documents can and will be referred to by the Employment Appeals Tribunal ‘s Early Resolution Service (ERS), The Rights Commissioner and the Labour Court

• NOTE: In 99% of cases brought before the Labour Court where there is no written contract, the Employer loses.

Contracts

• Contracts of employment are covered by law in:

– Terms of Employment (Information) Act 1994-2001

• Other relevant Acts are: – Unfair Dismissal Acts 1977-2005

– Protection of Young Persons (Employment) Act 1996

– Organisation of Working Time Act 1997

– Protection of Employees (Part-Time Work) Act 2001

– Protection of Employees (Temporary Agency Work) Act 2012

Maternity Leave

• All female employees who become pregnant while in employment are entitled to Maternity Leave under the Maternity Protection Act 1994 and the Maternity Protection (Amendment) Act 2004.

• Maternity Leave is 26 weeks in total taken at least 2 weeks before the end of the week of the baby’s expected birth and at least 4 weeks afterwards.

• Employees are also entitled to a further 16 weeks of Additional Maternity Leave – which is unpaid.

Maternity Leave

• Additional Maternity Leave is not covered by Maternity Benefit and Employers are not obliged to make any payment during that period.

• With effect from July 1st, 2013, Maternity Benefit became a taxable benefit.

• Employees are entitled to any Public Holidays that occur during Maternity and Additional Maternity Leave.

• Annual Leave is also accumulated during this period.

Maternity Leave • If the employee has a stillbirth or miscarriage any

time after the 24th week of pregnancy, they are entitled to full Maternity Leave.

• This means the basic 26 weeks plus the Additional Maternity Leave of 16 weeks.

• Employees are entitled to return to work, to the same job under the same contract of employment , after taking Maternity and Additional Maternity Leave.

Parental Leave • Under the Parental Leave Act 1998 and the

Parental Leave (Amendment) Act 2006, both parents have an equal but separate entitlement to Parental Leave, of 18 weeks, which is unpaid, to care for a child.

• A person acting in loco parentis with respect to an eligible child is also entitled to take Parental Leave.

• If a child was adopted between the ages of 6 and 8, Parental Leave may also be taken up to two years from the date of the adoption order.

Parental Leave • Parental Leave can be longer where an employee

has more than one child, if the employer agrees.

• The 18 weeks may be taken as a single block or in 2 periods of a minimum of 6 weeks.

• However, if the employer agrees, Parental Leave may be taken in periods of days or even hours.

• Annual Leave and Public Holidays accrue whilst employees are on Parental Leave.

• On returning from a period of Parental Leave, an employee may request a change in work patterns.

Paternity Leave THERE IS NONE UNDER IRISH LAW.

• Paternity Leave is granted to Male employees in some European countries, and is similar to maternity leave in scope and period allowed.

• Under Irish Employment Law there is no obligation on employers to grant Paternity Leave – under any circumstances.

• However, male employees (under the Maternity Protection Act 1994) may be granted Maternity Leave, for example, if the woman dies within 40 weeks of birth of the child.

Sick Leave • Under Irish Employment Law employees have

no entitlement to be paid whilst on Sick Leave.

• However, some employers do allow for paid sick leave of up to three days and this will be included in contract terms & conditions of employment.

• Where no such entitlement is stated, employees will need to seek illness benefit for periods they are absent from work due to illness, from the Department of Social Protection.

Sick Leave • Where an employee is sick or more than two

days, they are requirement to supply a signed GP certificate indicating the cause of illness and expected date of return to work.

• Procedures for dealing with long-term absence due to illness should also be included in company / staff handbooks and include the requirement regular GP-certified sick notes covering the period of absence.

• Prior to returning to work, employees need to submit a ‘Fit for Work’ certificate from their GP.

These Back-to-work interviews are probably the most influential vehicle for ensuring that absence. According to An ISME survey - back to work interviews are the most effective strategy for reducing absence. (60% reduction) A good structure for the interview is the WARM process: *Welcome – creating a positive environment. *Absence – discovering the issues involved in the absence. *Responsibility – ensuring the employee takes responsibility for preventing absence happening again. *Making priorities.

Conduct back-to-work interviews.

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EMPLOYMENT LAW &

OTHER ADVICE.

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AVAILABLE TO MEMBERS ON

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www.isme.ie

The Independent Business Organisation