Employers continue to make mistakes about many of the employment laws that they are faced with. In today’s litigious environment a badly worded contract or policy can prove very costly.
The Terms of Employment (Information) Act 1994 provides that an employer is obliged to provide an employee with a statement in writing no later than two months after the commencement of employment containing the following particulars:
Many difficulties would be avoided if the employer takes their time to get this statement correct as the written statement can avoid later arguments about what the employee's contract contains.
Any subsequent changes to the statement must be confirmed in writing with the employees. We recommend a carefully drafted contract but at the very minimum a statement containing the above should be drafted.
The Employment Equality Acts 1998 and 2004 prohibit discrimination on nine grounds. The grounds are gender, marital status, family status, sexual orientation, religion, age, disability, race /colour/ nationality / ethnic or national origins and membership of the traveller community. The Act prohibits discrimination in employment and, in particular, access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re grading or classification of posts.
Time Act 1997 are as follows:
The 48 hour net maximum working week can be averaged according to a number of rules. This can be average for employees generally over a four month period.
There is also an exemption in respect to work which is seasonal in its nature and this can be averaged over six months. It is also possible for employees to enter into a collective agreement with their employers which is approved by the Labour Court.
There are other exceptions under the Organisation of Working Time Act and employers should familiarise themselves with these.
This involves a range of rights afforded to employees. These include maternity leave, parental leave, force majeure leave, adoptive leave and carer's leave. It is important that every employer familiarise themselves as best they can with the requisite legislation in this area. Maternity rights and parental leave are the two areas that employers may be most familiar with in this area. Section 26 of the Maternity Protection Act, 1994 provides that an employee has a general right to return to work and also has a similar general right to return to the position they held before maternity leave.
Holiday pay is earned against time worked. All employees, full time, part time, temporary or casual earn holiday entitlements from the time work is commenced. Employees are entitled to four working weeks in a leave year in which the employee works at least 1,365 hours. The Organisation of Working Time Act 1997 provides for nine public holidays. In respect of each public holiday an employee is entitled to either:
Every employer must take measures to ensure that employees are not subject to verbal or physical bullying or harassment from their bosses, co-workers or customers and suppliers. There has even been recent case law to state that this extends to out of work activities. There are a number of increasing cases resulting from stress as a result of bullying. Every employer should ensure that any complaints were dealt with seriously and in a manner which does not add to the issues experienced by the employee. Every employer should take active steps to discharge their obligation and fulfil their duty of care in this matter. All employers should have a proper policy drawn up to deal with bullying in the work place.
A transfer of undertaking occurs when a business or part of a business is taken over by another employer as a result of a merger or transfer. When a transfer takes place there is a legal obligation on the new employer to take on the existing staff of the business or the part of the business concerned. The employee is entitled to terms and conditions of the employment with new employer which are no less favourable than those he or she enjoyed with the previous employer immediately prior to the transfer. The employee's accrued service with his or her employer is deemed to have been with the new employer. Any breach of law will give rise to legal claims including potentially claims for unfair dismissal.
All employers should be careful in altering the terms and conditions of employment. This can effectively give rise to a breach of contract. A contract of employment should be changed by way of negotiated agreement where possible. This is a somewhat complex area and suffice to say employers should be careful that they do not create a situation where they unilaterally alter the contract and are suddenly faced with a dismissal claim from an employee.
The Unfair Dismissal Acts, 1997 to 2001 are based on two fundamental principles:
All employees who have one year's continuous service with the employer and who have not reached normal retirement age for employment are included under the Act. In order for a contract to properly terminate where notice is given the notice must specify the date of termination or be given in such a way that the date is ascertainable.
All employers should have a carefully constructed contract of employment together with an office manual setting out the appropriate mechanisms to take place whereby an employee is dismissed. This is an extremely contentious area and one which employers should handle with extreme care.
The dismissal is deemed not to be unfair dismissal if it resulted wholly or mainly from the redundancy of an employee. Redundancy is therefore an absolute defence to a claim for unfair dismissal, provided the employee has been fairly selected for redundancy. Strict adherence to the definition of the redundancy is required from employers if an employee is held to be dismissed by reason of redundancy.
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