Employer Resources Newsletter - December 2022

End of Year Parties & Employer Responsibilities

End of year parties, as with work-related social events, can be a great team building exercise and a way to celebrate a successful year. But employers in the nonprofit and community and voluntary sectors need to be aware of the potential pitfalls as they can still be held to be ‘liable’ for events that take place at the event unless it can be shown that all reasonable steps were taken to prevent unwanted behaviour, leading to complaints and/ or disciplinary actions.

Alcohol is most likely consumed at the Christmas party, which can increase the risk of unwanted comments and physical contact. Employers should take the opportunity to remind employees of the standard of conduct expected of them and that they must observe the provisions of the Dignity at Work and Anti-Bullying, Harassment and Sexual Harassment policies at work-related events. And, if an incident takes place at the end of year party, employees should be reminded the accusation will be investigated and acted upon in the same way it would if it happened in the workplace.

Health, Safety and Employee Relations: There is always a risk that the actions of employees at an End of Year Party may potentially damage working relationships and reflect negatively on the Organisation. Employers have a duty of care to all employees and should take reasonable steps to ensure that inappropriate conduct at these events does not arise; this includes harassment, sexual harassment and bullying.

Under the Employment Equality Acts, 1998 to 2015, employees are protected from any form of harassment. If an Employee can prove that unwanted conduct by a colleague violated his/her dignity by creating an intimidating, humiliating or offensive environment, they may have grounds to lodge a harassment claim against the Employer.

Use of social media: Employees should be reminded of their responsibilities under the Organisation’s social media policy in terms of posting inappropriate photographs or comments.

The “Day After the Night Before”/ Post-party absenteeism: If the event falls on a day where employees will be required to attend work the following day, employers should make it clear that it is unacceptable for an employee to attend work under the influence of drugs or alcohol so that they are not a danger to themselves or others. If possible, it would be preferable to hold the event on Fridays or the weekend.

Attendance of Event: If the Christmas party is out of hours, employers must understand that some people have family responsibilities that may prevent them attending, and employees should be made aware of the fact that they are not obliged to attend the event.

Food and Drink: Employers need to be sensitive to employees who don't drink alcohol or who don't eat certain foods, and should ensure there are non-alcoholic drinks available and alternative food options.

Inappropriate Discussions: Social occasions are not an appropriate place to discuss performance, promotion, salary or career prospects.

Travel Facilities: As already highlighted, the health and safety of employees is still the responsibility of the employer. Therefore, employers should provide the details of public transport or taxi facilities in the area where the event is being held.

Inclusion: Christmas is a Christian celebration and it is not observed by every religion and consideration should be given to ensure all employees are made feel welcome at the event, or respected if they choose not to attend. So potentially referring to the event as an “End of Year Party” might be more appropriate.

Employment Law Changes in 2022

A number of legislative changes came into force this year so organisations in the nonprofit, charitable and community, voluntary sectors need to ensure that policies and procedures are reviewed, developed and introduced to demonstrate your compliance.

The Gender Pay Gap Information Act 2021

For larger nonprofit organisations with a headcount of 250 or more requirements on reporting gender pay gap came into force this year.

Under the Gender Pay Gap Information Act 2021, employers are obliged to report the hourly Gender Pay Gap across a number of metrics.

Organisations with 250+ employees were the first required to report their data with a deadline of December 2022. The guidance states that employers choose a ‘snapshot’ date in June 2022 of their employees and report on the hourly Gender Pay Gap for those employees on the same date six months later (December 2022).

Gender Pay Gap reporting will extend to other organisations with 150+ employees from 2024 and 50+ employees from 2025.

The Gender Pay Gap information must be published on the employer’s website or in some other way that is accessible to all its employees and to the public.

Organisations impacted by the legislation are advised to ensure they have the right strategy, framework, resourcing and data for producing an accurate Gender Pay Gap Report in line with the stated requirements.  An action plan will also need to be developed to address any identified Gender Pay Gap.

New Codes of Practice published on Equal Pay & Sexual Harassment and Harassment at Work

The Irish Human Rights and Equality Commission (IHREC) published two new Codes of Practice this year on Equal Pay and Sexual Harassment & Harassment at Work. The Codes of Practice provide guidance for employers, trade unions and employees to ensure equal pay is given for like work as well as protecting employees from sexual harassment and harassment in the workplace.

The provisions laid out in both codes are admissible in evidence in proceedings before the Courts, the Workplace Relations Commission and the Labour Court.

Code of Practice on Equal Pay

The Code aims to provide guidance to employers and employees as well as representative groups on:

• The right to equal pay for like work
• Identifying and eliminating pay inequality
• Resolution of pay disputes.

Irish equality law sets out nine protected grounds on the basis of which a person cannot be discriminated against, which are gender, marital status, family status, age, disability, sexual orientation, race, religion and membership of the Traveller community.

To establish a claim for equal pay under the legislation, an employee must show that they are performing “like work” with that of a chosen comparator, that they are receiving less pay for that work than their comparator and the reason for this is based on one or more of the nine grounds mentioned above. The Code outlines the various elements to be considered when assessing comparators.

Guidance is provided in the Code to help employers identify pay inequality and includes ways to eliminate it, including how to conduct a pay review incorporating a rational and objective job evaluation model.

The Code sets out how an employee who believes that they are not being paid equal pay for their like work should firstly raise this internally before proceeding to the Workplace Relations Commission or Courts.

Code of Practice on Sexual Harassment and Harassment at Work

The Code aims to provide guidance to employers, trade unions and employees on:

• The meaning of sexual harassment and harassment in the workplace
• How it can be prevented
• Steps to ensure procedures are in place to deal with the issue and how to prevent it reoccurring.

The Code highlights that people in precarious work and new workers, including immigrant workers, are particularly vulnerable to sexual harassment and harassment. Guidance is given to support employers in addressing and resolving complaints. Advice is also provided to support the development of a comprehensive, effective and accessible policy that will minimise sexual harassment and harassment in the workplace.

If your policies and procedures have not yet been reviewed and/ updated in line with the provisions of the new codes of practice it is imperative that you act now to ensure compliance.

The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022

On December 1st, 2022, the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 was introduced implementing new rules as to how employers will have to share tips, gratuities and service charges amongst employees. For many they will not be impacted by the introduction of this piece of legislation for those in the sector whose organisation includes a café then appropriate measures must be taken.

Under the Act, employers are required to:

• Provide clarity on the meaning of tips, gratuities and mandatory service charges
• Prominently display their policy on how both card and cash tips are distributed
• Ensure tips and gratuities – but not mandatory service charges – are placed outside the scope of an employee’s contractual wages
• Ensure all electronic tips are distributed fairly and in a transparent way
• Leave the status quo regarding mandatory service charges forming part of the revenue of the organisation.

Organisations will also be required to keep a record of how tips and gratuities are distributed in the event of a complaint. Employers must provide a statement to workers within 10 days of the distribution of tips showing the value of tips the organisation has earned in a given period of time and how much of that was paid to the individual employee for that particular period. The records must be available for inspection by the Workplace Relations Commission.

Community worker who claimed she was bullied awarded €9,000 for constructive dismissal.

Summary of Complainant’s Case:

These complaints arose out of a dispute between the Complainant and the Respondent that started as a pay dispute but subsequently developed into a grievance concerning pay, allegations of bullying and poor line management, failing to address the Complainant’s work concerns in accordance with agreed procedures, failing to conduct a grievance in a timely manner.

The complainant lost trust in her employer due to the grievance process lacking fairness leading to the process being defective. The complainant started her employment in the respondent’s community development and resigned from her role in February 2020. Following the resignation, there was a grievance investigation into a bullying complaint made against a line manager. The complainant contended that the investigation was flawed and there was predetermined decisions from the outset.

The complainant also contended that she should have been on a higher pay scale, even with this mentioned to management on numerous occasions, the respondent disputed her request for an increase in pay which result in financial loss for the complainant.

The respondent made amendments to the complainant’s contract over the years with no communication to the complainant and this permitted the respondent to maintain that she started on a lower point in the salary scale than she had.

The complainant explained that the grievance process had a number of defects and that it took 14 months to complete which she felt it was unfair, and the outcome, unsatisfactory which gave her no choice but to resign.

The investigation was not felt to be independent from the complainant as the person appointed to conduct the grievance appeal was a close acquaintance of the complainant’s line manager against whom the complainant had brought a bullying complaint against. In other words, the appeal of the independent investigation reverted to an in-house appeal. The Complainant contended that while she may not have had sufficient reason to leave her employment at the start of the grievance process that by the time the grievance process had come to an end she had no option other than to leave the job because of the way the process was conducted, particularly the appeal process.

Summary of Respondent’s Case:

In relation to the issue raised by the complainant around pay, the respondent explained that the complainants pay was not within the respondent’s remit to increase. The respondent tried but was unable to increase, due to funding restrictions and the impact of the crash in 2008 causing public pay freeze.

The respondent found that they were unable to pay the complainant a higher salary increase due to her absence in higher educational qualifications. In an attempt to resolve this, they reduced the complainant’s working hours but maintained her pay.

The Respondent denied that the grievance process was flawed. The complainant’s line manager initially dealt with her complaints informally. This was in accordance with the organisations grievance policy.  When complaints were made against the line manager, she stepped away and stayed away from the grievance process. After the complainant raised a formal grievance the respondent went to considerable expense, which it could not afford, to engage a third party to conduct an independent investigation. This investigation was thorough, independent and fair and upheld the complainant’s grievances in part. The respondent was not obliged to provide an appeal but it did and the appeal which followed the investigation, was conducted in a manner that the respondent could afford having limited resources available to it. The appeal process was fair and most importantly it was agreed to by the complainant.  The chairperson (of the board) who conducted the hearing did so impartially and just because the complainant was unhappy with the appeal outcome did not render the process to be unfair.

At all stages, the respondent confirmed they took all measures to sort out the complainants concerns but this prompted another grievance. The respondent claims that every step that could have been taken to assist the complainant during the grievance process was taken. The process did not contain the option of an appeal, but this was offered because the complainant had been unhappy with the fact that she had not been asked to agree the appointment of the investigator as per the grievance policy. It was because of this that an additional layer was agreed to be added to the grievance procedure, namely the appeal.

For a constructive dismissal to be successfully pursued the authorities make it clear that unhappiness with the outcome of a grievance process is not a good reason for an employee to leave their job. The way the complainant’s grievances were dealt with arose out of the limited resources of the respondent and, the process overall was fair and reasonable. The assertions that the appeal was flawed fall very far short of amounting to a constructive dismissal and had the complainant agreed to mediation, it was likely that the issues that led to her bringing the grievance in the first place could have been ironed out.

A Summary of the Findings and Conclusions:

In terms of pay, the adjudicator found that this complaint was outside of the time limits permitted and therefore did not have jurisdiction to consider the complaint.

In terms of terms and conditions of employment, the adjudicator found that the alleged breaches did not arise either six or twelve months prior to the initiation of the complaint and therefore had no jurisdiction to consider the complaint.

The adjudicator accepted the manner in which the dynamic developed in terms of the complainant bringing a grievance because the line manager did not accept her claim for a higher pay grade, she then raised an issue of bullying and intimidation and that work incidents were not adequately dealt with by her line manager.

The adjudicator explained that in the respect of the conduct of the appeal, that it was reasonable for the complainant to terminate her employment.

In conclusion, the adjudicator was satisfied that the complainant had reached a point where she felt manifestly undervalued in the job, given her years of service to the respondent and given that members of the board of management that she had always respected no longer appeared to value her. The adjudicator outlined that the complainant’s belief that her employment had become untenable was reasonable and accepted that she lost trust and confidence in her employer.

This led to the adjudicators decision that the complainant was unfairly dismissed and would be award four months loss of salary in the amount of €8960.00 on the basis of the financial loss that the complainant sustained as a result of the dismissal.

Our Commentary

Grievances are best dealt with at an earlier stage and organisations need to ensure that any employee complaints are being addressed where possible at the informal stages of the process. Notwithstanding that a number of complaints will progressively move to a formal stage it is essential that employers are mindful of the appropriate codes of practice to ensure full natural justice and compliance is being applied at every stage. Challenges can and do arise for those in smaller organisations within the nonprofit sector but there is still an obligation to maintain impartiality at every stage. The expectations of third parties, such as the Workplace Relations Commission, is that all organisations regardless of sector will ensure the principles of natural justice apply. Therefore, seeking appropriate advices is essential to maintaining the requirements and alignment to the relevant Code of Practice.

Upcoming Employment Law Updates

A number of key pieces of legislation are being enacted in the coming year and organisations within the nonprofit, charitable and community, voluntary sectors need to ensure the appropriate policies and procedures are either being designed or updated.

Statutory Sick Pay

Statutory Sick Leave will be effective from 1st January 2023.

The Sick Leave Act 2022, which was passed by the Oireachtas in July 2022, will come into effect from 1st January 2023. The new scheme entitles employees to paid sick leave from their employer as well as State illness benefits.

Initially, employees will be entitled to three days paid sick leave for the first year (2023), increasing to five days in 2024, seven days the year after and, by 2026, employees will be entitled to 10 days paid sick leave.

Employees will be required to provide a medical cert from a registered medical professional.

Employers will be required to pay a rate of 70% of the employee’s pay up to a daily maximum of €110.

What Should Organisations Do Now?

Employers who have sick leave policies in place already should now review and make the relevant updates to ensure compliance with the new legislation, communicating same to their staff.

Employers who currently do not have a sick leave policy will be required to have one in place by the start of next year.

Employers are advised to analyse and determine their absenteeism rate, to assess the potential financial implications for their 2023 budgets initially.

Our HR Barometer Report found that the anticipated absence rate for 2022 is 12.5% an increase from 11% in 2021. Of this, 65% was certified and 81% was short-term absence so it is essential that organisations within the nonprofit sector are planning for and budgeting the additional financial obligations that will come with the implementation of this Act.

Right to Request Remote Working to be Integrated with Work Life Balance Bill

The legislation giving employees the right to request remote work is to be included in the Work Life Balance Bill, which is expected to be delivered by the end of the year.

Therefore, employers and employees will now be making and considering requests for remote working under one piece of legislation and one Code of Practice – which is to be developed by the Workplace Relations Commission.

Under the integrated Bill, there is now obligation on the employer to consider both their needs and the needs of employees when assessing a request, having regard to the Code of Practice. The Code of Practice will provide guidance to employers and employees on their obligations regarding compliance.

Under the integrated Bill, Remote Working will be defined as one type of flexible working and all employees will have a right to request remote working. The right to request any other type of flexible working, such as reduced hours, will remain limited to parents and carers, as defined in the Bill.

National Living Wage to Replace Minimum Wage by 2026

The Government has announced that the National Living Wage is to replace the National Minimum Wage by 2026.

It has been agreed that the National Living Wage will be set at 60% of the national hourly median wage and will be phased in over a four-year period. From 2026, the Minimum Wage will no longer exist.

From 1st January 2023, the Minimum Wage is increasing to €11.30 per hour and this will continue to increase over the timeframe until it reaches 60% of the hourly median wage. In 2023, it is estimated that 60% of median earnings would equate to approximately €13.10 per hour.

However, given the increased cost of living, the Living Wage Technical Group has said that it should now rise to €13.85 per hour.

Once fully introduced, the National Living Wage will be assessed and it is expected that the Low Pay Commission will advise on the practicalities of increasing the rate from 60% to 66% of the median rate.

Protected Disclosures (Amendment) Act 2022 Signed Into Law

In July, the Protected Disclosures (Amendment) Act 2022 was enacted, which transposes the EU Directive on the protection of persons who report breaches of Union law as well as an overhaul of the statutory framework for the protection of whistleblowers and the government have indicated an effective implementation date in January 2023.

Key provisions of the Act include:

• Significant expansion of the personal scope of the Protected Disclosures Act to volunteers, unpaid trainees, board members, shareholders, members of administrative, management or supervisory bodies and job applicants.
• An obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures. A derogation until 17th December 2023 will be put in place as regards this requirement for organisations with between 50 and 249 employees. All public sector organisations, regardless of size, are already required to have formal protected disclosures procedures in place under the 2014 Act. The Act also provides that the Minister may, by way of order, extend the application of the Act to classes of employees with less than 50 employees.

Employers and prescribed persons designated to receive protected disclosures under the Act will be subject to an obligation to:

• Acknowledge receipt of the protected disclosure within seven days,
• Diligently follow-up on the information contained in the protected disclosure,
• Provide feedback to the reporting person on the actions taken or envisaged to be taken as follow-up within three months following an initial assessment,
• Communicate to the whistleblower the final outcome of investigations triggered by the protected disclosure.

Organisation that do not have an existing policy and procedure should ensure this is being prepared and where applicable preparing for the required formal reporting channels and procedures to be put in place.

New Pensions Auto-Enrolment Scheme Approved

The new pensions auto-enrolment scheme is expected to be introduced in 2024 and it is estimated that 750,000 workers aged between 26 and 60 will be impacted. Workers who are not already in an occupational pension scheme will be automatically enrolled in the new scheme. However, they will have the choice to opt out if they so wish.

For every €1 contributed by the worker to the pension scheme, this will be matched by the employer (i.e., €1 for €1) and the State will contribute €1 for every €3 saved by the worker.

It is expected that the contribution rates will be phased over several years as follows:

EU Directive on Transparent and Predictable Working Conditions

The EU Directive for Transparent and Predictable Working Conditions aims to provide employees with more predictability and clarity in relation to their working conditions.

EU Member States had until 1st August 2022 to transpose the Directive into law, but Ireland has yet to do so. Organisations should be aware of these changes in the upcoming year.

However, some of the requirements are already covered by existing Irish employment legislation, such as providing employees with information on their employment under the Employment (Miscellaneous Provisions) Act.
 

If your Organisation requires support, advice or guidance on developing and implementing policies and procedures contact our expert-led team at Adare Human Resource Management.

Dublin Office: (01) 561 3594 | Cork Office: (021) 486 1420 | Shannon Office: (061) 363 805

info@adarehrm.ie | www.adarehrm.ie