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http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
The 16 Costly Employment Law Mistakes Many Irish
Employers Make
Hi there.
Welcome to this short report on The 16 Costly Employment Law Mistakes
Many Irish Employers Make.
Kindly note that it is for informational purposes and is not legal advice.
Please read our disclaimer.
I originally wrote this report in 2014 for employers who are understandably
concerned with costly claims being taken against them by employees.
But it soon became apparent that employees with
employment related difficulties were
downloading the report in large numbers too.
Let me be clear: I am a solicitor so I represent
both employers and employees alike.
You can learn more about my services for
employees here.
Employers, click here.
Word of Warning in 2016 The law has changed pretty significantly since I first published this report in 2014.
For example, you now have new whistleblower legislation and a new minimum wage
from January, 2016.
The Workplace Relations Commission (WRC) is the new body which, from
1st October 2015, hears all cases concerning complaints about breaches of
employment and equality law in the workplace. (Learn how to make a complaint to
the Workplace Relations Commission.)
In this report you will find the common problem areas for employers in relation to
their employees.
You will also find a handy checklist to ensure that you are ready for a NERA
inspection.
Being an employer in Ireland is a difficult challenge at the best of times. I know
because I have been one since 1986.
http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
There is a huge body of employment law, regulations, etc. which place onerous
obligations on the employer. It is easy for an employer to get it wrong.
But that doesn’t make it right and ignorance of the law is no excuse.
This short report will look at 9 common areas of difficulty for Irish employers. It will
also tell you the 7 minimum pieces of employment information employers need to be
careful about.
As a small business owner busy with 1001 other things it is easy to take your eye off
the ball when it comes to your employees.
And the consequences of some avoidable mistakes can be expensive in both money
and time.
As an employee there is nothing more morale sapping than going to work every
morning with a sick feeling in the pit of your stomach.
Because you just know you are not being treated fairly.
You don’t have to put up with it. You can, and should, do something about it.
(Click here to learn how we help employees.)
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
Let’s take a look at some of the most common areas of potential liability first.
Later in this short report I will look at the 7 critical pieces of action you need to take
care of as an employer to ensure you are not hit with costly claims by your employees
or penalties by the National Employment Rights Authority (NERA).
Key areas of concern for an Irish employer
1) The Contract of employment This is a critical area to get right from the outset and to prevent problems arising in
the future. Watch out for implied terms as well as the express terms you agree with
your employee.
Unfortunately, it is only when things go wrong that you
discover how weak your contract is.
For a more detailed look at what can go wrong in agreeing a
contract of employment with employees and what to be wary
of prior to contract click here.
2) Payment of wages The Payment of Wages act 1991 governs the payment of
wages by an employer to the employee and states that your employees must be given
a written statement of pay.
There are also strict obligations on employers about minimum wage rates, non
payment of wages, and permitted (and unacceptable) deductions of wages.
Learn more on my site by clicking here.
3) Time and leave entitlements This area covers rest periods, sickness of the employee as well as holiday and
maternity periods and is an area of common difficulty between employer and
employee.
The Organisation of Working Time Act, 1997 and various EU directives are the
principal pieces of legislation in this area.
Learn more about leave and holidays here and working time and rest periods here.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
4) Discrimination and equality in the place of work
This is another huge area of law with rights and entitlements arising from the
Constitution, EU directives and our own Irish legislation such as Employment
Equality Acts.
Many employers get caught out, not by direct discrimination but, by indirect
discrimination particularly against fixed term or part time employees.
You can learn more about the ins and outs of discrimination and equality here.
5) Health and safety Health and safety law places some very serious obligations on the employer and there
are common law obligations as well as statutory obligations. Breaches of health and
safety law can lead to criminal convictions for you as an employer.
Learn more about health and safety in the workplace here.
6) Transfer of undertakings This covers situations where one business buys another in which there are
employees. The Transfer of Undertakings Directive (TUPE) govern this problematic
area and it can be difficult to understand whether this directive applies to your
situation or not.
If you are in any doubt you should seek professional advice because this is a complex
area and an employee’s rights and entitlements transfer with them in a TUPE
situation.
For more about TUPE regulations click here.
7) Unfair dismissals
This area is probably the most costly for employers in terms of claims.
It also covers constructive dismissals and has proven to be an area of considerable
cost and expense to employers.
Constructive dismissals are particularly problematic as many employers think that
once they don’t dismiss an employee that they are safe enough. This is not the case as
you may be liable if an employee quits their job as a result of feeling they have no
other option.
You can learn more about unfair dismissals and constructive dismissals here.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
8) Redundancy If the employer wants to make an employee redundant it had better be a proper
redundancy and the procedure for choosing an employee for redundancy must be fair
and non-discriminatory.
Otherwise (s)he could be facing a claim for unfair dismissal.
Learn more about redundancy in Ireland here.
9) Trade union recognition/disputes Trade union disputes and whether you recognise a trade union in your workplace can
be costly for the employer. Even if you do not recognise the trade union in your
workplace you can still be brought to the Labour Relations Commission as Ryanair
has on many occasions.
These are 9 broad areas of employment law which can lead to costly mistakes and
expense for you as an employer if not handled correctly.
Each area outlined above is worthy of a book on its own. Clearly a short report like
this can only flag up the potential difficulties-you would be well advised to seek
professional advice if you face similar problems and you are not sure how to proceed.
I know I have said it before but it is worth saying again: the cost of a
successful unfair dismissal claim against you as an employer can be
horrendous.
If you are an employee you will probably need to know whether you have
a case or not, even if it’s just for peace of mind.
Get professional advice.
I don’t care whether it’s from me or not.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
NERA In addition to having to settle or pay out on 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.
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.
What you need now to be concerned with, at a minimum, are the minimum steps you
need to take to ensure compliance with employment legislation in Ireland.
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
Each employee must be given a written statement of pay.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
3. The minimum wage
There are exceptions to the minimum wage in Ireland of €9.15 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.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
NERA NERA (National Employment Rights Authority) is the statutory body
appointed to ensure employers compliance with employment legislation in Ireland. It
carries out regular inspections to fulfil it’s obligations and ensure compliance by
employers.
NERA also has the statutory power to prosecute employers where noncompliance
persists or is serious but NERA also provides an information service for employers.
NERA Inspections
NERA inspections must be carried out in compliance with it’s NERA Inspection
Procedures Manual and it’s Code of Practice for NERA employees.
Generally, but not always, the employer will receive notice form NERA about it’s
intention to inspect the records of the employer. The inspection should take place at
the employer’s business premises as employers are obliged by law to keep their
employment records there. The employer can choose to be represented by a solicitor
or anyone else in their dealings with NERA and there will be a dedicated inspector
assigned to deal with each case.
Generally NERA inspections are carried out
1. Routinely
2. After receive a complaint
3. As part of a compliance campaign dealing with a new or particular
development in an industry or piece of legislation.
In general NERA will not tell you why they are inspecting unless it is a repeat
inspection within 6 months of the first one.
The first part of the inspection is an interview with the employer prior to inspection
of employers’ records and/or interviews with member of staff.
Checking on the employer’s compliance with statutory requirements as to the
necessary employment records is a key part of the inspection.
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
Once the inspection is carried out a letter will issue concluding the investigation
providing there is no evidence of non-compliance. If there are minor breaches then
the Inspector will generally give the employer the opportunity to put things right.
However where there is evidence of underpayment of wages the inspector will
calculate the underpayment for three years from date of inspection and seek to have
this paid as soon as possible.
NERA can also bring prosecutions in serious or persistent cases of non-compliance
and can share it’s information with the Revenue Commissioners and the Department
of Social Protection.
If you feel as an employer that you have been treated unfairly you can bring a
complaint to a NERA regional manager who will investigate your complaint.
Employer’s Checklist
Below you will find a handy employer’s checklist for a NERA (National Employment
Rights Authority) inspection:
1. Do you have your employer’s registration number with the Revenue
Commissioners?
2. Have you a list of all your employees together with their PPS numbers and
addresses?
3. Have you the dates of commencement of employment for all employees? (And
dates of termination if applicable?)
4. Have you given all your employees a written statement of terms and
conditions of employment?
5. Have you the employees’ job classification?
6. Have you a record of their annual leave and public holidays taken by each
employee?
7. Have you a record of hours worked for all employees?
8. Have you a record of all payroll details?
9. Can you prove that you provide your employees with a written statement of
pay?
10. Have you a record or register of all employees under the age of 18?
11. Have you employment permits where applicable?
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Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
12. Have you filled out the template letter details that you will receive from NERA
advising you of the inspection?
Conclusion
EMPLOYERS
You as an employer can save yourself the considerable costs in money and time
involved in defending or otherwise dealing with claims by 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.
We can supply you with
• Contracts of employment
• Staff handbooks
• Disciplinary and grievance procedures
• All workplace policy documents
• Employment law advice
• And all necessary documentation to ensure compliance with the law and peace
of mind for you as an employer so that you can concentrate on growing your
business.
Click here to learn more about our services for employers.
EMPLOYEES
Unfortunately, some employers are cowboys, quite frankly.
And they will continue to act like cowboys if they are let get away with it.
If you don’t stand up to them.
Employees can be slow to stand up for themselves though. The vast majority of
employees just want to get on with their job without any hassle or disagreement.
Also many people naturally avoid conflict. And they don’t want to be seen as
someone who “causes trouble”.
“Anything for an easy life”.
This is understandable.
But, quite frankly, there are times when you do need to stand up for yourself.
Because if you don’t the situation is likely to just get worse.
http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
The consequences of a serious problem at wok not being tackled can be hard on your
well-being and health.
Not to mention your career prospects.
And you may end up just leaving your job to avoid the situation.
But this isn’t a solution.
Learn more about our services for employees here.
Thanks for taking the time to read this report.
About the Author Terry Gorry B.Comm helps employers and small business owners to avoid expensive
employment related claims and to ensure that they are compliant with employment
law in Ireland.
He also helps employees when their rights have been infringed or ignored.
He is a solicitor, small business owner, and employer in Ireland since 1986.
Here’s his Amazon author page.
Here’s his YouTube channel.
http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
Check it out on Amazon. Paperback and Kindle versions available.
http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
Check it out on Amazon.
http://EmploymentRightsIreland.com ©2016
Terry Gorry & Co. Solicitors Call 046/95 49 614 © 2016
How to Carry Out a Disciplinary Procedure in the Irish Workplace-
Online Course Did you know that 80% of unfair dismissal claims are lost by employers for one
reason?
The reason has nothing to do with what the employee has done or failed to do.
It has nothing to do with the employee’s performance or conduct.
It makes no difference that that there was “substantial grounds” for the dismissal.
Or whether it was misconduct or serious misconduct or gross misconduct.
No, the reason why employers lost 80% of unfair dismissal cases in 2012
was the absence of fair procedures.
No natural justice. No constitutional justice.
Learn more about this online course here.
