Business Protection Briefing

Transcription

1 Business Protection Briefing

2 Fair Procedures Audi Alterem Partem ( hear the other side ) includes the right to be informed in advance of the charges, the right to representation, the right to be heard and the right to confront one s accusers Nemo Iudex In Sua Causa ( no man is a judge in his own cause ) the right not to have an actually biased or objectively biased judge.

3 Common Law Duties of Employer 1 :Duty to provide and maintain a safe system of work 2: Duty to provide safe place of work 3: Duty to provide competent staff 4: Duty to provide safe plant and equipment.

4 Duty of Care Duty of Care Test is whether an Employer has taken reasonable care for the safety of his Employees to prevent injury from a foreseeable risk having regard to all circumstances. The duty extends to the risk of psychiatric as well as physical injury e.g. bullying/stress at work.

5 Reasonable Care & Forseeability Reasonable Care An Employer must take reasonable care for the Employee s safety e.g. Barclay v An Post [1998] Postman delivering letters who injured his back. Employer had to ensure that he didn t do further work which would further injure him. Failure to take reasonable care meant this Employee succeeded with his claim. Forseeability The risk to the Employee must be foreseeable. In McLoughlin v Carr t/a Harloes Bar [2007], the particular circumstances of the raid on this pub, which included the raiders dressed as Gardai, were not foreseeable. In this instance the Employee failed with his claim.

6 Penalisation An Employee can t be penalised for making a complaint about a Health and Safety issue. Includes any act that effects an Employee to his detriment e.g. dismissal, demotion, coercion, intimidation or disciplinary action.

7 Penalisation Toni & Guy Blackrock Limited v Paul O Neill. The Employee raised an issue about gloves. Subsequently performance and attendance issues raised with the Employee which led to his dismissal. The Labour Court held that but for the complaints raised regarding health and safety, the employment issues would not have resulted in his dismissal, and the Employee was awarded 20,000.

8 Minimum Policy Requirements Grievance Procedure Disciplinary Procedure Dignity at Work encompassing Bullying, Harassment and Sexual Harassment Policy Equality Policy Safety Statement

9 Other Policy Guidelines Maternity Protection Policy Parental Leave Policy Health and Safety Policy Induction Training Guidelines Recruitment and Selection Guidelines Social Media Policy Data Protection Computer usage/internet Use Policy Code of Conduct & Code of Ethics Protective Leave Sickness/Absence Management Drug & Alcohol Policy Proprietary Information

10 Contract of Employment 2 months from commencement or else fine of up to four weeks remuneration. Section 3 of the Terms of Employment (Information) Act 1994 states that the contract must include: Name of both employer and employee and the address of the employer The place of work, the job title and the nature of the work. Date of commencement. If fixed term contract the date on which the employment will conclude, or if a fixed purpose contract confirmation of the specific purpose. The rate of pay, or the method by which pay will be calculated and when pay will be made i.e. Weekly.

11 Contract of Employment Hours of work, including overtime. Terms and conditions relating to paid leave. Any terms or conditions relating to pensions or pension schemes. Terms and conditions relating to sick leave or incapacity due to injury. Notice periods. Any collective agreements which directly affect the terms and conditions of the employee s employment.

12 Redundancy Payments Acts

13 Redundancy Employee must be aged 16 or over, their employment must be insurable under the Social Welfare Acts, and they must have been in continuous employment for at least 104 weeks You make the position redundant how do you select the person? Must apply reasonable, objective, and fair selection criteria for the redundancy procedure Must consult with an Employee prior to their dismissal you must consider all options including alternative positions Minimum entitlement to redundancy payment for employees 2 weeks per completed year in service capped at one week. Tax free. Calculator at

14 Minimum Notice and Terms of Employment Act Provides for minimum notice periods to be given by Employers and Employees when terminating the Contract of Employment. If an Employee has 13 weeks continuous service, they are entitled to 1 week s notice while an Employee with more than 2 years service is entitled to 2 week s notice.

15 Unfair Dismissals Acts 1977 to 2007 Employee must have at least one year of continuous service A dismissal is considered to be unfair if an Employee is dismissed due to their race, membership of a trade union, religious/political views; if the Employee is a party/witness to legal proceedings against the employer; if they are pregnant or availing of rights during protected periods of leave e.g. maternity leave, parental leave, etc. For Unfair Dismissal - onus on Employer For Constructive Unfair Dismissal - onus on Employee Unfair selection for redundancy also constitutes unfair dismissal

16 Maternity Protection Acts

17 Maternity Protection Acts Applies to employees who have recently given birth and/or who are breastfeeding no qualification period to avail of the Acts protection Entitlement to 26 weeks leave Additional unpaid leave of up to 16 weeks Notification requirements of 4 weeks to take leave and to return Social Welfare payment Entitlement to paid ante/post natal medical visits, and to Health and Safety leave Specified Purpose contracts for replacement employees Protective leave.

18 Adoptive Leave Acts Adoptive mother, or sole male adopter, is entitled to adoptive leave from employment and social welfare benefits for 24 weeks Additional unpaid leave of up to 16 weeks Employee has the same right to return to work as an Employee with maternity leave Protective Leave!

19 Parental Leave Acts Must have one year s continuous service, however employees with less than a year s service but more than three month s service can avail of reduced parental leave. 18 weeks unpaid leave per parent per child before child is aged 8, or 16 if the child has a disability Employer has the right to postpone

20 Employment Equality Acts Outlaws discrimination on a wide-range of employment related areas, such as promotion, recruitment, equal pay and working conditions. Discrimination defined as treating one person in a less favourable way than another based on Gender, Family Status, Civil Status, Sexual Orientation, Religion, Age, Disability, Race, Membership of the Traveller community Complaints to the Equality Tribunal, with option of the Circuit Court in gender discrimination cases

21 National Minimum Wage Act Currently 8.65 per hour Protection of Employees (Part-Time Work) Act, 2001 & Protection of Employees (Fixed-Term Work) Act Principle of equal treatment, like work, objective grounds can justify less favourable treatment Protection of Employees (Temporary Agency Work) Act Temporary agency workers entitled to same basic working and employment conditions as their directly recruited counterparts includes pay, annual leave, access to amenities and job opportunities, and rest periods.

22 Recruitment Advertisements should not indicate an intention to discriminate Exercise caution in connection with information requests accompanying job applications Short listing should proceed on transparent objective grounds based on competency Assessment criteria to evaluate candidates must be objective Take and retain notes of questions asked and answers given by candidates during interview Seek consent from a candidate prior to seeking a reference

23 Thank You Michael Enright & Co. 9 Sheares Street, Cork The information in this document is not intended to provide and does not constitute legal or any other advice on any particular matter and is provided for general information purposes only. Whilst every effort has been made to ensure accuracy no liability can be taken for any omissions or errors.