HR E-ssentials from Graphite HRM

Welcome to the August edition of HR e-ssentials, the monthly Ezine from Graphite HRM on developments in people management and employment law practice.

In light of the recent publication of the Equality Tribunal's Annual Report for 2006, we are focusing on the subject of Equality in this month's Ezine. The articles include two recent equality-related cases heard by the Tribunal and highlight some important learning points for employers. The Consultation Queries also look at common equality-related issues that employers are faced with in the recruitment process, an area of HR management which crops up regularly among the cases heard by the Tribunal. In other news, the Health and Safety Authority also launched its Annual Report for 2006.

Contents

Graphite Workshops

Graphite Employment Law Briefings

Please refer to the Graphite website for more information on these workshops and Employment Law Briefings.

Please note that places are limited. For further information, or to make a booking, please contact Fran on (01) 662 7099 or email fran.graydon@graphitehrm.com

HR News

Lessons from Case Law

Graphite Consultation Queries

HR News

Launch of the Health and Safety Authority Annual Report 2006

The Minister for Labour Affairs, Mr. Billy Kelleher, launched the Health and Safety Authority's Annual Report for 2006, and the Summary of Injury, Illness and Fatality Statistics 2005-2006, on 18th July 2007. The Minister emphasised that the two principle objectives for the Health and Safety Authority's (HSA) workplace safety strategy are to:

In order to achieve these objectives, the HSA had a number of initiatives in 2006 including:

The Statistics Report states that there were 50 work-related deaths reported to the Authority in 2006, which represents a decrease of 35% on the number in 2005. The highest number of deaths occurred in the Agriculture sector, with the Construction industry having the second highest number of fatalities. However, the Construction industry recorded a decrease in the number of fatalities from 23 in 2005, to 12 in 2006.

The HSA Annual Report and Summary of Statistics is available on the HSA website (www.hsa.ie).

For more information on Health and Safety, please refer to Chapter 9, in the Personnel, Policies and Procedure - the Law in Perspective manual.

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HR News

Equality Tribunal Annual Report 2006

The Equality Tribunal published its Annual Report for 2006 on 25th July 2007. The Tribunal is an independent, impartial, quasi-judicial body which hears, or mediates, claims of alleged discrimination under the following Acts:

The decisions of the Equality Tribunal in claims and in mediation are legally binding.

The Report shows that there continues to be an increase in the number of claims taken to the Equality Tribunal. The Tribunal received claims from 7,100 individuals in 2006 (this includes both Employment Equality and Equal Status cases). There was a 12% increase overall in the number of Employment Equality cases lodged with the Tribunal. The most notable increase in Employment Equality cases were claims taken on the ground of race. There was a 78% increase in 2006 on the number of cases taken on the basis of race (an increase from 82 cases in 2005, to 146 cases in 2006).

Other notable increases/decreases include:

Employment Equality claims were successful in 44% of cases. The average award ordered by the Tribunal for Employment Equality cases increased by 17%, to €10,113, in 2006.

The Director of the Equality Tribunal, Ms. Melanie Pine, noted that this trend towards increasing referrals continues in 2007. There was an increase of 55% in the overall number of referrals, relating to Employment Equality, in the first 6 months of 2007. Again, the increase in race-related cases further builds on the pattern of 2006, with an increase of 123% in the first 6 months of 2007. Also, although there was a decrease in referrals on the basis of disability in 2006, there is an increase once again on this ground for the first 6 months of 2007 (an increase of 122%).

An effective approach for cases referred to the Tribunal is for the parties to engage in Mediation. There were 223 cases referred to Mediation in 2006, and 56% of these cases were resolved.

Finally, Ms Pine acknowledged the support of the Department of Justice, Equality and Law Reform in securing additional resources for the Tribunal. It is hoped that the extra staff will recruited by the end of 2007, which will help offset the increasing demands being made on the Tribunal.

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HR News

Anti-Ageism Initiative Launched in Public Transport Sector

As part of the national "Say No to Ageism" initiative launched during this year's Anti-Ageism Week in June, Bus Éireann, Dublin Bus, Iarnród Éireann, the Rural Transport Programme and Veolia Transport have produced a report on "Implementing an Action Plan to Promote More Age-Friendly Transport Services". The five transport companies have implemented a programme of actions to enhance the age-friendly character of the services they provide. The actions taken included:

John Keenan, Director of Strategy and Business Development at Iarnród Éireann stated "Some people say age is a state of mind. I believe that there is a positive return to organisations who believe that age is a state to mind. In this context, age can be seen as an advantage - new thinking, emerging energy, coupled with a mature knowledge and experience base is a recipe for organisational success".

Vincent Eaves, Commercial Manager of Veolia Transport, operator of the Luas, welcomed the "Say No to Ageism", commenting that "Luas is a very accessible form of travel which makes it popular with older people. Veolia Transport's customer care programme already recognises the needs of older people. Our focus is always about treating people with dignity and respect and listening and adapting to the needs of all passengers. An age friendly focus is part of the journey with Luas".

Niall Crowley, CEO of the Equality Authority, stated at the launch that "the work of the five transport companies provides a valuable leadership for other sectors in seeking to combat ageist attitudes and practices. The work done has demonstrated the importance of creating a workplace culture that is conscious of age and ageism using staff training, workplace posters and internal communication systems".

An age-friendly service provision is a provision that:

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Lessons from Case Law

Complainant Awarded €25,000 in Race-related Equality Case

In this case, the Complainant was a South African non-white woman, who applied for a promotion with the Respondent. Having failed to secure the position, she lodged a complaint with the Equality Tribunal alleging that the Respondent had discriminated against her in the recruitment process on the basis of her race.

There are a number of lessons to be learned from this case, but of particular interest for employers will be the Equality Officer's view of the lack of transparency and inherent subjectivity of the recruitment criteria and scoring system.

Article Location: Login to the 'Client Zone' > Click on 'Dignity at Work-Equality' - Select article from under 'Lessons from Case Law'.

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Lessons from Case Law

Complainant Awarded €90,000 for Discrimination on the Grounds of Age

In a recent decision given down by the Equality Tribunal that made national headlines, an employee of An Post successfully pursued a case of Discrimination on the grounds of Age in access to a highly lucrative severance scheme. The key point that all employers should note from this case is that while it is lawful to set age restrictions in access to particular benefits, this must be based on sound actuarial logic and communicated to employees in advance.

Article Location: Login to the 'Client Zone' > Click on 'Dignity at Work-Equality' - Select article from under 'Lessons from Case Law'.

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Graphite Consultation Queries

For Premium, Premium Plus and HR Compliance customers, Graphite provides a HR Telephone Consultation Service. As part of our regular monthly review in HR e-ssentials, Graphite HRM provides you with an insight into the type of queries we get through this consultation service.

Question: Can I set a minimum and maximum age limit when recruiting for a position?

Answer: Under the Employment Equality Acts, 1998-2007, there are two ways in which an employer is entitled to set limits with regard to the age of applicants when recruiting for a position.

1. The Acts allow an employer, at its own discretion, to set a minimum age limit of 18 years of age for access to particular, or all, positions in their organisation. Otherwise, the scope of the Acts, with regard to the age ground, applies to people who are above the maximum age at which they are legally required to attend school (currently 16 years of age).

   However, having received applications from candidates over the age of 18, an employer cannot then discriminate with regard to age in the selection process. For example, an employer cannot select a candidate for a position based on the fact that they are older than another candidate.

2. An employer can also set a maximum age for recruitment in particular circumstances. If a position will require a substantial period of training, or very costly training, before the new recruit will be ready to carry out the functions of the position, the employer may set a maximum age for applicants. This applies where an employer requires that the new employee will be effective in the role for a reasonable period prior to retirement age, and which will allow the employer to see a tangible return for the investment of time, and/or money, in training the new employee. An example of where a maximum recruitment age may be set is in the recruitment of airline pilots.

In general, therefore, employers should be cautious in how they advertise vacant positions. While it is acceptable to set a minimum age of 18, and, in certain circumstances, to set a maximum age, job advertisements should not contain requirements or language that could reasonably be deemed to discriminate against particular age groups. For example, employers can be found to be discriminatory where they have included phrases such as 'young and dynamic', or 'school-leaver', or have set an upper limit on the years of experience required for a position (e.g. 'the ideal candidate will have no more than 3 years experience in a similar role').

Employers should always be aware that they are not permitted to specify different entry requirements for applicants for posts, based on any of the nine grounds set out in the Employment Equality Acts.

Furthermore, in relation to age and recruiting for staff, the Acts allow employers to offer a fixed-term contract of employment to a person who is over the compulsory retirement age for that organisation. The normal requirements of the Protection of Employees (Fixed-term Work) Act, 2003, otherwise apply in this situation.

With regard to retirement ages, employers are free to set different ages for different classes of employees in the organisation. It is critical that the retirement age is set out in the contract of employment, and that each employee retires once they have reached the organisational retirement age (otherwise the retirement age could be challenged if a precedent is created in the organisation whereby some employees have continued in position beyond the official retirement age).

Employers should also note that there are exemptions in the Acts with regard to fixing ages for "occupational benefits schemes". For example, an employer can fix ages for admission to an occupational benefits scheme, or fix different ages for different categories of employee, or use age in actuarial calculations in the context of an occupational benefits scheme. An "occupational benefits scheme" includes any scheme, statutory or non-statutory, providing benefits to employees on their becoming ill, incapacitated, or redundant, but does not include occupational pension schemes.

For more information on the Employment Equality Acts, 1998-2007, please refer to Chapter 7, 'Equality', in the Personnel Policies and Procedures - the Law in Perspective manual.

Question: How do I find out if a job applicant is legally entitled to work in Ireland?

Answer: Under the Employment Permits Acts, 2003 and 2006, it is an offence for any employer to knowingly, or negligently, employ a person in Ireland without the required legal permit. Therefore, all employers must either a) ensure that a prospective employee is furnished with the correct employment permit if appropriate or b) establish a person's eligibility to work at the recruitment stage. It is recommended that all employers ask the question "Are there any legal restrictions on your right to work in Ireland?" at the earliest possible stage of the selection process.

Should you decide to do this, it is very important that all applicants are asked the same question, regardless of race, nationality or any other factor. If a person responds in the positive (that is that there is a legal restriction on their right to work in Ireland), and the post is on the non-eligible list of jobs issued by the Department of Enterprise, Trade and Employment, the employer may not be able to progress the application any further.

Current Government policy states that where an EEA national is more, or equally, qualified for a particular role than a non-EEA national, the EEA national should be offered the role.

Graphite HRM will run a half-day workshop on this issue on 19th September 2007 in the Clarion hotel (IFSC), Dublin 1.

For more information on Employment Permits and Recruitment, please refer to Chapter 13, 'Recruitment', in the Personnel Policies and Procedures - the Law in Perspective manual.

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Graphite Workshops

Implications of Employment Law,
one-day workshop,
16th August 2007

InvestigatorTraining
two-day workshop,
22nd and 23rd
August 2007

Selection Interviewing Skills
one-day workshop,
28th August 2007

Developing an Employee Handbook,
one-day workshop,
10th September 2007 - SLIGO

Managing Dignity and Respect in the
Workplace
half-day workshop,
12th September 2007.

Implementing Contracts of Employment
half-day workshop,
12th September 2007

Performance Management and Goal Setting
one-day workshop,
13th September 2007

Absence Management
one-day workshop,
18th September 2007

Employing Foreign Nationals,
half-day workshop,
19th September 2007.

To make an enquiry,
or to book a place
on any of Graphite
HRM's workshops
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www.graphitehrm.com
or email
fran.graydon@
graphitehrm.com

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