HR E-ssentials from Graphite HRM

Welcome to the September 2007 edition of HR e-ssentials, the monthly Ezine from Graphite HRM on developments in people management and employment law practice.

This month's Ezine focuses on Employers' obligations when it comes to Redundancy and Reasonable Accommodation on the grounds of Disability. As always, we will look at some of the more interesting consultations that have been dealt with by our Consultation Team in August which contain important learnings for all of our clients. We are also delighted to announce details of Graphite HRM’s 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

"An Employer's Responsibilities and Liabilities -
Complying with Irish Employment Law"

23rd October 2007 in the Green Isle Hotel, Naas Road, Dublin

Guest Speakers include:

Mr. Ger Deering, Director of National Employment Rights Authority (NERA)
Mr. Alan Haugh, Barrister-at-Law, Senior Legal Advisor, National Employment Rights Authority (NERA)

Please note that places are limited on the Seminar and all Workshops. For further information, or to make a booking, please contact Vera on 01-6627099 or email vera.okojie@graphitehrm.com

Graphite News

All Graphite HRM clients will shortly receive the 2007 Customer Survey for their completion. This survey is designed to allow Graphite to fully understand the requirements of its members and to ensure that our services are meeting the needs of our clients. If you can take a few minutes to complete the survey, it would be greatly appreciated by the team at Graphite. Thank you.

HR News

Lessons from Case Law

Practical Steps

Graphite Consultation Queries

HR News

Equality Tribunal Awards €125,000 Against Employer

The Equality Tribunal has recently made a substantial award against an employer in an equality-related dismissal case. An employee of the airport ground services firm, Aviance, was dismissed on medical grounds due to cardiac problems.

Having sustained an injury to his arm at work, the employee was attending the company doctor. During the course of the consultation, the employee's history of cardiac problems was discussed. The company doctor would not certify the employee as being fit to return to work and Aviance eventually dismissed the employee.

The Equality Tribunal found that Aviance had not sought to reasonably accommodate the employee on the grounds of disability and awarded the employee €65,000 for loss of earnings, and €60,000 for stress suffered as a result of the discrimination.

We will include a full summary of this significant case in the coming months.

In the meantime, in this month's Ezine, we have included a summary of two Labour Court reasonable accommodation cases.

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HR News

Labour Court Publishes its Annual Report for 2006

The Labour Court published its Annual Report for 2006 on 9th August 2007. The Report provides an overview of the Cases Referred and Cases Completed by the Labour Court in 2006. It also includes a synopsis of individual determinations made by the Court in 2006.

90% of cases referred to the Labour Court in 2006 were under the Industrial Relations Acts. The other 10% were referred under a wide range of other legislation including the Organisation of Working Time Act, 1997, Employment Equality Acts, 1998-2007, the Protection of Employees (Part-Time Work) Act, 2001, and the Protection of Employees (Fixed-Term Work) Act, 2003.

47% of the cases under the Industrial Relations Acts were regarding breaches by employers of Registered Employment Agreements. In the opinion of the Labour Court, the dramatic increase in these referrals is a result of the increased monitoring by the Trade Unions of employers' adherence to the terms and conditions of the Agreements.

The number of days lost due to industrial relations disputes was 7,352, a significant decrease from 26,665 days in 2005.

The Annual Report is available on the Labour Court website (www.labourcourt.ie).

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Lessons from Case Law

Unfair Dismissals and Reasonable Accommodation Cases

In this article we outline details of two dismissal cases that were heard by the Labour Court. In both cases, the employer was found not to have taken reasonable steps to accommodate the employees, both of whom had a disability, to carry out their jobs. The employees were found to have been unfairly dismissed on the basis of disability and the cases demonstrate the onus that is on employers to facilitate employees to continue working where a disability is acquired. There is a similar onus on employers to seek to facilitate an employee with a disability who is a suitable candidate for appointment to a position within an organisation.

Whenever a disability or illness/injury is in question, an employer should first take medical advice from a qualified medical practitioner before taking serious action with regard to the employment, or re-deployment, of an employee.

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

Employers' Guide to Current Redundancy Legislation

A genuine Redundancy situation occurs where a position no longer exists as a result of objective business reasons and where there is no intention to replace the position. It is important to note that a true Redundancy is based on the role itself, rather than the employee.

In light of further changes to the Redundancy Payments Acts in May 2007, this article is designed as a Step-by-Step Guide to the practical implications of Irish Redundancy legislation.

Article Location: Login to the 'Client Zone' > Click on 'Termination of Employment' - Select article from under 'Practical Steps'..

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Graphite Consultation Queries

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

Question: We have had a downturn in business and are considering implementing lay-offs or short-time working. What would these actions entail?

Answer: A lay-off or a short-time hours situation arises when an employer decides that, due to a temporary downturn in business, it is necessary to reduce costs in the short-term, until business increases again. In a lay-off, the employer will suspend the employee's employment for a period of time because there is no work available. In a short-time situation, the employer determines that there is less work available than the normal hours the employee works, and reduces the employee's wages, or reduces the number of hours of work. In both cases, the key element is that the employer expects this to be a short-term arrangement. An employee is considered to have been placed on short-time working where the reduction leads to at least a 50% decrease in weekly earnings or to less than half the normal weekly hours for the employee concerned.

An employer does not have an automatic legal right to lay-off an employee or put an employee on short-time unless already provided for. Therefore, employers should ensure that contracts of employment contain a clause reserving the right to implement lay-offs or short-time arrangements. In the event that the employer has not reserved this right, it could still seek to implement these actions by agreement with the employees. Employees and Trade Unions may be willing to accept lay-off/short-time arrangements rather than an immediate redundancy situation.

Under the Redundancy Payments Acts, 1967-2007, an employee is entitled to make a claim for redundancy if they have been laid off, or kept on short-time, for either 4 consecutive weeks, or for an intermittent period of 6 weeks over a period of 13 consecutive weeks. As a result of lay-off or short-time, the employee must give written notice of their intention to claim redundancy (on an RP9 form), either:

• After the 4 consecutive weeks on lay-off/short-time; or
• After an intermittent 6 weeks in a consecutive 13-week period on lay-off/short-time; or
• Not later than 4 weeks after the expiry of the period of lay-off/short-time.

Question: We are about to make an employee redundant as a result of losing a contract with one of our customers and we were told that the lump sum paid to her at redundancy can be treated differently for tax purposes. Is this true?

Answer: Yes, this can be true. Assuming the employee concerned has 104 weeks' continuous service with the company and is over 16 years of age at the time of redundancy, she will be entitled to a Statutory Redundancy Payment.

The total sum paid as a Statutory Payment is completely tax-free to the employee. In addition, any ex-gratia payment agreed with the employee will be treated in a tax-efficient manner as a Termination Payment. The first €10,160 is tax-free, plus €765 per complete year of service. If the person has not been in receipt of a termination payment in the 10 years prior to the Redundancy taking effect, the tax-free element can be increased by an additional €10,000.

If there is an occupational pension scheme in place and the employee opts to take a lump sum payment from this scheme at the time of termination, the additional €10,000 will be reduced by the amount taken from the scheme, € for €.

For specific advice on the tax treatment given to each individual employee, please refer to the Revenue Commissioners website - www.revenue.ie.

For more information on Redundancy, please refer to Chapter 14, 'Termination of Employment', in the Personnel Policies and Procedures - the Law in Perspective manual.

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Graphite Workshops

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

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.

Developing an Employee Handbook,
one-day workshop,
27th September 2007

Investigator Training,
two-day workshop,
9th & 10th October 2007

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

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Order a free 7-day
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Personnel Policies
and Procedures - The
Law in Perspective
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employment law
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Fran Graydon on
(01) 6627099

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