HR E-ssentials from Graphite HRM

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

In this month's Ezine we look at a wide range of HR-related topics. As promised in the September Ezine, we have included a comprehensive summary of the recent Equality Tribunal case in which there was a €125,000 award against an employer. We also explore some of the practical issues for HR Practitioners when an employee applies for maternity leave, or when an organisation seeks to introduce employment contracts or information and consultation arrangements. We have also included some more details on our forthcoming Autumn Breakfast Seminar.

Contents

Graphite Workshops

Graphite Free Employment Law Briefings

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

Graphite Autumn Breakfast Seminar

The focus of Graphite HRM's Autumn Breakfast Seminar will be "An Employer's Responsibilities and Liabilities - Complying with Irish Employment Law".

In February 2007, the Minister for Enterprise, Trade and Employment announced the establishment of the National Employment Rights Authority, a new and independent body dedicated to the maintenance and enforcement of Employees' and Employers' Legal Rights in Ireland. Compliance with Employment Law will be dealt with in a coordinated, cohesive manner which will mean big changes for Irish Employers in how they ensure adherence to the law. The National Employment Rights Authority (NERA) will share its vision of the practical implications of these measures for Employers and HR Managers in Ireland with Graphite at our Breakfast Seminar in Lynch Green Isle Hotel, Newlands Cross, Dublin 22 on 23rd October 2007.

Speakers will include:

Ger Deering
Director of National Employment Rights Authority (NERA)
Keynote Address:
"The Current and Future Role of NERA for the Irish Employer"

Alan Haugh
Senior Legal Advisor, National Employment Rights Authority (NERA)

Anne O'Callaghan
Head of HR Compliance, Graphite HRM

Schedule:
First Speaker begins at 8.00am (sharp), Seminar closes at 11.00am on Tuesday 23rd October 2007.

For further information, or to book, please contact Vera Okojie on 01-6627099 or vera.okojie@graphitehrm.com

HR News

• Mr Billy Kelleher, TD, Outlines Upcoming Steps in Employment Law Compliance

Lessons from Case Law

• Complainant awarded €125,000 by Equality Tribunal

Practical Steps

Graphite Consultation Queries

HR News

Mr Billy Kelleher, TD, Outlines Upcoming Steps in Employment Law Compliance

Mr Kelleher spoke recently at the Irish Bank Official Association's (IBOA) conference. In the course of his speech he reported on the progress achieved to date on a number of important steps which are aimed at improving the rights of employees.

The Minister stated that the new Employment Law Compliance Bill will be published early in 2008. It will provide for the establishment of the National Employment Rights Authority (NERA) on a statutory basis. In the future, there will be a new model of compliance, which will result in increased penalties across all employment rights legislation, simplification of adjudication and redress mechanisms, and a strengthening of arrangements to facilitate Labour Inspectors to carry out their function.

NERA was set up on an interim basis earlier in 2007. Mr Kelleher explained that in its proposals NERA has indicated that Labour Inspectors will be based in regional offices in Dublin, Cork, Shannon and Sligo, and its headquarters will be in Carlow. Mr Kelleher reminded delegates that under the national partnership agreement, Towards 2016, the number of Labour Inspectors will be increased to 90 by the end of 2007. He confirmed that this goal is well on its way to full implementation, with 48 Inspectors in place currently. In addition, 10 foreign language Inspectors are ready to commence in the role.

The Minister also referred to the commitment built into Towards 2016 to strengthen legislation in relation to the Employment Agency sector. New legislation is proposed which would provide for a licensing system based on a statutory Code of Practice covering standards of behaviour for Employment Agencies. In addition, it is proposed that a Monitoring and Advisory Committee would be established to advise the Department on matters relating to the overall operation of this sector.

Subscribers to HR-essentials have an opportunity to hear, at first hand, how NERA intends to enforce legal compliance standards at Graphite HRM's Autumn Breakfast Seminar on 23rd October 2007. For further details, or to book a place, please call Vera on 01-662 7099.

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Lessons from Case Law

Complainant awarded €125,000 by Equality Tribunal

This dispute concerned a claim by an employee that he had been subjected to discriminatory treatment, and discriminatory dismissal, on the grounds of disability. The Complainant further claimed that he had been subjected to victimisation as a result of his claim. The Equality Tribunal awarded €125,000 against the employer. This case demonstrates the importance of having accurate and agreed job descriptions in the employment relationship. It also highlights the onus that is on employers to reasonably accommodate employees with a disability, and the need to request comprehensive medical assessments in order to establish what adjustments could be put in place to facilitate the employee to fulfill their role effectively.

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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Practical steps

Employer's Guide to the Practicalities of Maternity Leave

When Graphite HRM Consultants talk with our clients about general HR matters that they are having difficulty with, invariably the subject of Maternity Leave and how it interacts with existing terms and conditions is mentioned. For this reason, we are looking at the more common questions and effects of Maternity Leave legislation for Irish employers in this month's HR-essentials. This article includes advice on notice requirements, payment during maternity leave, health and safety requirements and a number of other maternity-related matters.

Article Location: Login to the ‘Client Zone' > Click on ‘Working Time and Leave Arrangements' - Select article from under ‘Practical Steps'..

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Graphite Consultation Queries

For Premium and Premium Plus customers, Graphite provides a HR 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: Do I have to provide my employees with an employment contract?

Answer: The legislation does not specifically require that an employee must have an "employment contract" in writing. There is, however, a legal obligation under the Terms of Employment (Information) Acts, 1994 and 2001, to provide all employees, who have one month's service with an employer, with a statement of their terms and conditions of employment. The statement must be signed and dated by the employer. This, in effect, amounts to the same as what is commonly referred to as an "employment contract".

This obligation under the Acts applies to all employees who commenced their employment on, or after, 16th May 1994. The statement must be provided to employees no later than two months after they commence employment with the organisation. The written statement must contain details on the following:

1. The full names of employer and employee;
2. The address of the employer in the State or its principal place of business in the State, or registered office;
3. The place of work of the employee, or if there is no fixed or main place, then a statement that the employee is permitted or required to work at various locations;
4. The title of the job or nature of the work;
5. The date of commencement of the contract;
6. If it is a temporary contract, the expected duration, or if it is for a fixed-term, the date on which the contract expires;
7. The rate or method of calculation of the employee's remuneration;
8. The intervals between payment of remuneration e.g. weekly, monthly;
9. Any terms and conditions relating to hours of work, including overtime;
10. Any terms and conditions relating to paid leave, other than paid sick leave;
11. Any terms and conditions relating to:
    • Incapacity due to sickness or injury and paid sick leave;
    • Pensions and pension schemes;
12. The period of notice the employee is required to give and entitled to receive, either statutory or under the terms of the contract of employment. If this is not readily available, then information on how the notice will be calculated must be provided.
13. Details of any collective agreement which directly affects an employee's terms and conditions. If the employer is not a party to the agreement, then particulars should be provided of the bodies or institutions by whom they are made.

It is best practice to request that the employee sign and date the statement also. Both the employer and the employee should retain a copy of the statement.

If an employee has entered into a contract of employment before the 16th May 1994, and requests a written statement of their terms and conditions, the employer must provide this statement within two months of the date of the request.

Ideally, all employees should have an employment contract; however, this is not the case in every organisation. Some employers may feel reticent about introducing employment contracts, particularly for existing employees. Some employers may fear that there will be resistance from employees if they try to put the terms and conditions down in writing. All parties, employers, line managers and employees, may be concerned that they will lose flexibility in how employees are managed and how the business operates.

However, employers should bear in mind that where there is an offer of employment, an acceptance of that offer, and remuneration is paid to the employee, then there is a contract in place, whether it is in writing or not. Furthermore, how the relationship between the employer and the employee operates on a day-to-day basis, in effect, forms the terms and conditions of the employment, for example:

• Start times and finish times and flexibility around same;
• Where the work is located;
• How and when wages are paid and rates of pay;
• How and when annual leave is applied for and how much the employee is entitled to;
• How sick leave is managed;
• Whether overtime or bonuses are paid.

As such, it is in the employer and employee's best interest to have a written contract between them to ensure mutual understanding and acceptance of the terms of the employment relationship.

If an employer seeks to introduce employment contracts, the following guidelines should be followed:

1. Employees may resist the introduction of employment contracts, but the employer should explain that they are a legal requirement;
2. Explain that the employment contract is not being used to reduce the terms and conditions of the employee (unless, in fact, it is reducing entitlements, in which case see point 3 below), and is simply a means to inform and clarify, for all parties, the terms and conditions, rights and benefits, which attach to the employment;
3. The employment contract should reflect the existing terms and conditions of employment. If the employer wants to change some of the existing terms and conditions, it should inform and consult with all employees beforehand, and explain the reasons why the change is necessary e.g. financial reasons, operational reasons;
4. Two copies of the employment contract, signed by the employer, should be distributed to all employees with a cover letter requesting that the employees return one copy of the contract signed and dated, and that they should retain the other copy for their own records;
5. The cover letter should request that employees contact the HR Department if they have any query over any aspect of the contract by a deadline specified in the letter, otherwise they should return the contract, with their signature, by the same deadline;
6. If an employee does not return the employment contract signed, or refuses to sign the employment contract, the employer should write to the employee once again requesting that they return the contract by an extended deadline. The employer should request that the employee raise any queries they have with regard to the contract with the HR Department by that deadline. The letter should also state that if the employee does not return the contract and does not arrange a meeting with the HR Department to discuss their query, the employer will assume that the employee is accepting the employment contract and the terms and conditions therein, and will put a copy of the employment contract on the employee's personnel file;
7. If, ultimately, the employee does not return the signed contract, a copy of the contract should be placed on the employee's personnel file, with a copy of any correspondence re same and a note of any objections to the contract by the employee.

For more information on the details that should be contained in an employment contract, and other operational considerations, please refer to Chapter 2, "Contracts", in the Personnel Policies and Procedures - The Law in Perspective manual.

Question: Our organisation has 140 employees and is now covered by the Employees (Provision of Information and Consultation) Act, 2006. We have not yet been asked to provide Information and Consultation arrangements under the legislation by our employees. However, we would like to initiate the process ourselves, as the employer. What do we need to think about?

Answer: Since 23rd March 2007, all organisations with more than 100 employees are covered by the Information and Consultation Act. It is often a good idea for employers to initiate negotiations on setting up Information and Consultation (IC) before receiving a request from employees. This approach can allow employers to have a greater degree of flexibility at the negotiation stage to agree the issues to be included for the purposes of Information and Consultation.

When considering implementing an IC arrangement, the employer must first consider if it wishes to deal with its workforce on a direct basis (discussions directly between employer and all staff) or an indirect basis (discussions between employer and employee representatives).

Direct method of Information and Consultation
In this case, the employer deals with all staff as a whole, informing and consulting with employees as a group. This can become more problematic as the organisation becomes larger, or where employees are spread out across a number of different areas. To implement IC arrangements in this case, the employer should propose a template agreement to include the following matters:

• Issues to be Informed and Consulted on with employees (e.g. Training and Development, Working Time (see later in this piece for further suggestions));
• Frequency of Meetings;
• Methods to be used to Inform and Consult (e.g. All-staff meetings, newsletters etc);
• Length of proposed agreement.

A majority of staff must then approve the agreement, through a confidential ballot, before it can be instated.

Indirect method of Information and Consultation
Where the employer opts for this method, it must first arrange for the election of one or more employee representatives. Where a union represents 10% or more of the workforce, it is also entitled to elect a representative. The employer should then decide on the number of representatives to be elected, invite nominations for the post(s) and hold an election by secret ballot to allow the entire workforce to elect from the nominees by majority vote.

Once the representative(s) have been elected, the employer can then enter into negotiations on an agreed format for IC in the organisation. Again, the Agreement can only be ratified where a majority of representatives agree to its structure. As with the agreement mentioned in the direct model above, it must include the following:

• Issues to be Informed and Consulted on with employees (e.g. Training and Development, Working Time etc);
• Frequency of Meetings;
• Methods to be used to Inform and Consult (e.g. All-staff meetings, newsletters etc);
• Length of proposed agreement.

In addition, the following requirements must be complied with:

• Minutes of meetings to be jointly approved;
• Employee representatives to be permitted to meet in advance of meetings with employers;
• Employee representatives to report back to employees;
• Expert advice and training to be available to the employee representatives;
• All relevant costs to be borne by the employer.

What issues could be subject to information and consultation?
Employers should ensure that their Information and Consultation Agreements specify precisely the issues that are to be addressed. Subjects to be addressed could include:

• Profit and loss;
• Sales performance and productivity;
• Strategic plans;
• Working time and practices;
• Training and development;
• Equal opportunity;
• Health, safety and environment;
• Pension and welfare issues;
• Merger and acquisition, transfer of undertakings;
• Collective redundancies;
• Restructuring, re-organisations.

Regardless of the method used to inform and consult staff, the Negotiated Agreement must comply with the following:

• Must apply to the entire work force;
• Must be negotiated, and not imposed by the employer;
• Has to be approved by the majority of employees or a majority of employee representatives;
• Must be in writing, dated and available for inspection;
• Must be signed by the employer and employee representatives or employees;
• Must provide a clear statement of subjects to be covered by the Agreement, conditions of the Agreement and how it will operate;
• Must provide for re-negotiation in the event of substantial change.

For further information on the detail of this legislation, how it works in practice and the trends in the Irish workplace, please watch out for the latest update to your Personnel Policies and Procedures manual, due December 2007.

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Graphite Workshops

Contracts of Employment, half-day workshop,
6th November 2007

Bullying and Harassment, half-day workshop,
6th November 2007

Managing Discipline and Grievance,
one-day workshop,
7th November 2007

Selection Interviewing Skills,
one-day workshop,
14th November 2007

Performance Appraisals, one-day workshop,
15th November 2007

Coaching Skills,
one-day workshop,
20th November 2007

Employing Foreign Nationals,
half-day workshop,
22nd November 2007

Train the Support Contact Person,
one-day workshop,
27th November 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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