Employer Resources Newsletter - March 2020

KEY CONSIDERATIONS FOR EMPLOYERS IN RESPECT OF COVID-19 AND THE WORKPLACE

The recent developments of the Coronavirus (COVID-19) in Ireland have continued to raise questions amongst Employers about scenario planning and obligations towards their Employees.

There are a number of considerations that Employers need to take to ensure they are prepared for possible scenarios due to the recent heightened awareness of COVID-19.

Planning:

• Business Continuity Planning:
  develop a Business Continuity Plan, including relevant stakeholders from within the Organisation, update it regularly and brief Employees
• Product / Service Delivery:
  consider the possibility of changes to your product, your service or your interaction with customers
• Remote Working:
  ensure the Organisation has an up to date remote working policy and test that the technology infrastructure can cope with larger than normal remote working activity
• GDPR:
  ensure the Organisation has appropriate security procedures in place relating to both hard and soft copy data when Employee are working remotely, including both on comp Organisational devices or personal devices (appropriate Bring Your Own Device policy should be in place as required)
• Travel:
  ensure that the Organisation have clear policies regarding travel for work, any restrictions put in place and health and Safety
• Restricting Access:
  consider restricting access for non-essential personnel or visitors to the Organisation’s premises
• Sick Leave:
  make sure the Organisation has a clear sick leave policy and procedure in place

Prevention:

• Deep Clean Offices/Premises:
  ensure the Organisation has undertaken a deep clean and schedule this regularly, particularly if an Employee had been in and area where there is an outbreak of the disease
• Hygiene Policy:
  prepare policies on hygienic behaviour for Employees and visitors / contractor / delivery personnel to premises as guided by national recommendations including hand hygiene policies
• Cleaning Practices:
  promote the use of appropriate cleaning practices as recommended. Employers should make available hand sanitisers or similar products
• HSE Guidelines:
  ensure all Employees have access to HSE guidelines, and ensure you issue and remind all Employees and visitors of these regularly and as they are updated.
• Travel:
  consideration should be given to all travel requirements, whether business trips or meetings (especially abroad) should, where possible, be postponed to a later date
• Etiquette:
  consider approach to work etiquette including handshakes – the Organisation should agree clear and acceptable practice
• Personal Responsibility:
  Employees need to take personal responsibility and follow HSE guidelines, medical advice and follow all Organisational policies that are put in place to try and prevent the risk of spreading COVID-19

Protection:

• Safety, Health & Welfare at Work Act 2005:
  the Safety, Health & Welfare at Work Act 2005 places an obligation on Employers to maintain a safe place of work. This is particularly important during this time and Employers must take all necessary precautions to ensure the risk of spread of COVID-19 is minimised
• HSE & WHO Guidelines:
  Employers should closely follow the HSE & WHO guidelines and share them with Employees.
• Common Sense:
  a common sense approach should prevail at all times.

Pay:
A number of scenarios may arise where it is unclear if an Employee is entitled to be paid when Employees are unable to attend work. Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.

Self-isolation / Certified Sick:
If an Employee is required to “self-isolate” or has been certified as having contracted the COVID-19 virus, Employers should adhere to their own internal policies and procedures, for example the sick leave policy.

Where possible, Employees may be permitted to work from home during this self-isolation period, however where this is not possible, Employers will need to make a decision on whether or not the Employee should be paid during this time. When making this decision, Employers are encouraged to take into consideration their duty of care for all Employees within the workplace, and what may occur if the Employee in question returns to work in order to be paid for this time.

New emergency legislation has been passed which will entitle Employees who self-isolate, or where an Employee is diagnosed with COVID-19 to sick benefit from day 1 of their absence in the amount of €350 per week, subject to medical certification. The entitlement to this increased illness benefit is only in the case of COVID-19 and where self-isolation has been medically certified but no diagnosis has been made then the benefit will only be applied for a maximum 2 week period.

Inability to attend work:
From a strict legal standpoint, there is no obligation to pay Employees when they cannot attend for work. Payment in such circumstances is discretionary.

Any more beneficial arrangement is a matter for agreement between the Employer and the Employee. Employers are encouraged to take a long-term view of the working relationship, recognising that demonstrating concern for the welfare of Employees and treating Employees fairly translates into a better working environment to the benefit of both the staff and the Employer. The custom and practice in the Organisation in previous similar instances may be of relevance. In circumstances where there are no sick pay provisions and the Employer is not in a financial position to provide for discretionary pay, an Employee may elect to apply for annual leave.

In the event that the Organisation’s premises is unable to open for reasons outside of the Organisations control, the Organisation should make every effort to notify Employees as soon as possible and Employees will not be entitled to be paid.  

Where the Organisation decides that it is possible to open the premises but determines that it is impractical, then in such circumstances Employees will be entitled to be paid.

Short Time and Layoff:
Short time can be defined where an Employer reduces an Employees working week / hours of work by 50% or more, meaning that the Employee now works for 50% or less of their normal contractual hours. Where Employees are kept on this ‘short time’ arrangement for 4 weeks or more, then they can request redundancy from their Employer. The Employee may be able to claim Job Seeker’s Benefit for this time providing that they meet the criteria and also depending on their own personal circumstances.

Lay-off can be defined where an Employer temporarily removes all work from an Employee for a period of time. This means that the Employee is not paid during this time as they are not required to attend for work, however, should the Employee work at any stage during this time they must be paid for these hours worked. The Government have introduced a new COVID-19 Pandemic Unemployment Payment for Employees who have been placed on a period of temporary lay off. This new unemployment payment is for 6 weeks, and Employees may be able to claim Job Seeker’s Benefit thereafter.

Employers should be advised that when selecting Employees for lay off or short-time working they should apply a standard of selection criteria that is reasonable and carried out in a fair manner. If a lay-off or a short-time situation exists and has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, an Employee can give the Employer notice in writing of their intention to claim redundancy under the Redundancy Payments Acts 1967-2014. Employers should review the contractual terms of their Employees in relation to the proposed implementation or introduction of such measures.

What happens where a roster needs to be changed at short notice?
Normally, Employees are entitled to notice of at least 24 hours of a roster change. However, this does not apply where the change arises from unforeseen circumstances justifying a change in the notification period.

Working from home:
Where appropriate, consideration should be provided to allowing Employees to work from home. This will not be feasible for a number of roles where the Employee’s presence is required. This may also put pressure on the Organisation’s IT infrastructure as demand increases.

Arriving late and / or leaving early:
Where Employees arrive late or leave early due to commuter services being impacted, whilst some flexibility may be provided, Employers need to consider paid leave where the Employees will work up the time missed at a later date, preferably within one month of the occurrence. This is usually more feasible in Organisations that already operate a flexi-time system. Alternatively, the option of unpaid leave or annual leave (broken into hours) may be considered.

Unexcused absence:
Some Employees may fail to attend for work when suitable public transport is in operation. Unless authorisation has been received, this is not a justifiable reason for absence and should be dealt with under the Organisation’s disciplinary procedure, as with any unexcused absence.

Conclusion
Each situation will be different and common sense will need to be used where there are clear health and safety risks to certain Employees.
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If you require assistance with regards to your workplace in respect of COVID-19, contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 

Case 1: Employee awarded 10 weeks pay for unfair dismissal

Background

The Complainant is a truck driver and commenced employment with the Respondent on 26th June 2013. This employment ended on 25th March 2020.

The Complainant worked 55 hours per week and earned €851.93 gross per week.

Summary of Complainant’s Case

The Complainant claimed that he was never issued with a terms of employment or a written contract of employment upon commencement with the Respondent. From the beginning of his employment, the Complainant contends he was asked to carry out tasks which sometimes were not related to the main job of delivering goods.

The Complainant stated that the working days got longer and longer but he never dared to question this as he never received his terms of employment to state the working hours he was expected to do plus any overtime arrangements and so on. In his 7 years at the company, he never received any complaints about his work until after he was dismissed.

There were days in which the Complainant was working 11-12 hours (the digital tachograph can prove this). In his statement, his boss, the Respondent has claimed that he is running a successful business. The Complainant contends that the employees have asked for wage increases on multiple occasions but were turned down each time.

In May 2019, the Respondent agreed to increase the wages but after one week he changed his mind due to the ‘poor financial performance’ of the company. The Complainant feels this doesn't seem right and professional and it emphasises a lack of respect for his employees.
After a while the Complainant started standing up for himself and demanded a contract of employment and a list of duties, he requested this on numerous occasions. Due to this, he feels that he experienced verbal bullying and was called names which he will not repeat.

The Complainant alleges that the Respondent refused to provide any safety equipment whatsoever after being asked on a few occasions. After the August incident, the Complainant kept asking about his contract of employment and a list of duties but was constantly turned down.

On the day of the dismissal, after he finished his deliveries he was asked to go pick up a trailer which was dropped off by his boss at a tyre depot. When the Complainant arrived on the premises he proceeded to turn his truck around in order to park in front of the trailer when an altercation occurred leading to the respondent to allegedly verbally abuse the employee. The complainant stated that the respondent told him to pack his things and never return.

The complainant stated that he sent the respondent an email later that evening. The Complainant stated that he was dismissed unfairly.
 
Summary of Respondent’s Case

The Respondent outline that the Complainant was asked to collect a trailer that was getting new tyres fitted. When he arrived at the tyre depot he attempted to hitch up to a trailer that the fitter was still working underneath. He hitched the trailer up knocked the trailer off the jack while the tyre fitter was still underneath.

The fitter advised the Respondent to wait and what he had done was dangerous but despite this he attempted to hitch up again while the fitter was still underneath. This resulted in the fitter banging his head and his side pinched by the tyre, the fitter was in shock by this turn of events. The Complainant did not acknowledge what he had done or apologise, and he then proceeded to drive off at speed.

The Complainant arrived back in his own depot and was confronted by the Respondent who was already aware of the incident.

When the Complainant was questioned by the Respondent as to the whereabouts of the trailer he stated that the tyre people had not finished. It was then explained to the Complainant that he was supposed to collect the trailer, proceed to location to pick up a load and return with the trailer to the depot. During this interchange the Complainant did not mention the incident with the tyre fitter.

The Respondent instructed the Complainant to park the truck in its place in the yard, he drove over erratically and aggressively to the parking spot and got out and started shouting at the Respondent and allegedly was verbally abusive.

As the Complainant’s behaviour was becoming more aggressive towards the Respondent he was asked by the Respondent to leave the yard, there had been no mention of the incident in the tyre depot as the Respondent was nervous of the Complainant’s behaviour and did not want to heighten his aggression. The Respondent suffers from Parkinson’s disease and has a bad tremor that gets worse in stressful situations. The Respondent did not want this to happen in front of the Complainant.

The Respondent then went to the tyre depot to check if the tyre fitter was ok and to offer any assistance and an apology.

The Complainant did not return to the yard after this and the Respondent contends that he heard nothing from the Complainant until he received an email asking about back pay plus dates of last working for Social Welfare purposes.

The Respondent is adamant that the Complainant was not dismissed but told to leave the yard that day because of his aggression and behaviour and the serious nature of the incident which could have gravely injured the tyre fitter.

Prior to this incident the Respondent contends that the Complainant’s attitude towards other drivers had been one of intimidation and he had constantly wanted the early jobs, so he could go home early. The Respondent states that he had to “pull him up” on several occasions about this.

The Respondent also alleges that the largest customer informed him that the Complainant s often late arriving and warned the Respondent that if the performance did not improve it could be detrimental to the Respondent’s business. When the Respondent brought this subject up with the Complainant his performance did not improve.

In relation to safety checks on the vehicles which are a standard requirement of the Road Transport Authority the Complainant failed to carry out the check one day and this resulted in in wheel damage to the truck that cost a substantial amount to repair.

The Complainant got so stressed on two occasions that he resigned over the telephone, the cause of the stress was that he was needed to help his wife in the Bed and Breakfast.

The Respondent concluded by stating that he had been in the transport business for over 50 years and that he ran a good company. He depends on employees and feels he treats them well and is fair. He helps employees out as much as he can if they have problems and claims to be very approachable.

Finding and Conclusions

The Adjudicator stated that the Respondent organisation do not have any policies or procedures in relation to employees. The Adjudicator stated that the Complainant was never issued with a statement of the particulars of his employment.

The adjudicator found that there were two different versions of events that took place on25th March 2020.  The Adjudicator stated that on the evening of 25th March, the Complainant sent the Respondent an email. This email included the following “Today, you told me to take my things and leave, and that you don’t need my services anymore, implying a dismissal. I will require a written statement or email from you to confirm this. ……..”

The Adjudicator found that not only did the Respondent fail to reply to this email but through his statement claimed that the Complainant did not return to the yard after that and he heard nothing from him until he received an email asking for back pay plus dates of last working day for Social Welfare. The email was sent a few hours after the Complainant left the yard.

The Adjudicator considered the statements from both the Complainant and the Respondent. The Adjudicator found that that the Complainant was a more credible witness than the Respondent and therefore conclude that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded.

Decision

The Adjudicator noted that the Complainant was unemployed for a period of two months and order the Respondent  to pay the Complainant a gross sum of 10 weeks pay that I calculate to be €8,519.30.

Our Commentary

In accordance with legislation, all dismissals are considered unfair, unless the Employer can demonstrate otherwise. As this case highlights, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee and that a fair procedure was followed. 
 
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time.
 
In deciding whether it is appropriate to dismiss an Employee for gross misconduct, the Employer must always consider:

• Could the Employee have reasonably known that the conduct would warrant dismissal, for example was this stated in a policy related to the incident, and was that policy communicated to the Employee?
• Have other Employees been dismissed in the same circumstances?
• Is there sufficient evidence to demonstrate that, on the balance of probabilities, the Employee committed the offence?
• Has fair account been taken of the mitigating circumstances, if any, that have been presented by the Employee?

If the answer to any of the above questions is “no”, then dismissal may not be an appropriate sanction to impose on the Employee.

Case 2: CE Participant awarded €4,000 for her unfair dismissal

Background

The Complainant contends that he was unfairly dismissed following a dispute with his Supervisor.

Summary of Complainant’s Case

The Complainant stated that he was employed by the Respondent from September 2017 to August 2019 through a Community Employment Scheme. He had a dispute with the Respondent which was subject to an Adjudication Recommendation, issued in July 2019. That Adjudication recommended that the dispute between the parties be referred to an independent mutually agreed third party for investigation into the matters raised by the Complainant. The Complainant however, was dismissed before this recommendation was put into effect.  

The Complainant stated that he was entitled to a third year on the C.E. scheme as he had embarked upon a Level 5 Fetac qualification in Security and Operations. The Community Employment Schemes Manual provides: “All eligible C.E. participants can avail of up to one year on the programme. The duration of participation can be extended on approval by the Department by up to 2 more years if the participant is working towards a major award / industry recognised equivalent to support progression in employment.”

The complainant has established through freedom of information process that the Respondent wrote to Ms C in the Department of Employment and Social Protection to inform her that the Complainant would not be offered a third year on the scheme.   The Complainant contends that another C.E. participant was brought in to paint and that the Complainant was unfairly dismissed.

Summary of Respondent’s Case

The Respondent contends that the Complainant was not unfairly dismissed or dismissed at all. His contract came to an end on 30th August 2019 and was not renewed as there was no business need to do so. The participants on the scheme were reduced from 2 to 1 at weekends and there was no longer a need for the Complainant and his contract came to a natural end.

Findings and Conclusions

The Complainant was employed on a Community Employment Scheme on yearly contracts for a period of 2 years from September 2017. The Adjudicator notes that the scheme allows for a third year if the participant is embarking on a qualification which would support progression in employment. The Adjudicator noted that the Complainant was studying for a relevant qualification and therefore qualified for a contract for the third year.

The Adjudicator found that despite the Respondent being aware of this, they specifically advised the Liaison person in the Department that they did not intend to offer the Complainant a contract for the third year. The Adjudicator found that in 2018/2019 problems arose with his Supervisor which were subject of a separate adjudication recommendation. The Adjudicator noted that recommendation advised the parties to try and settle their dispute by way of a third party investigation.  

This never took place.

The Adjudicator found that on the balance of probability, the Respondent found it expedient to dispense of the services of the Complainant rather than offer him a third and possibly final year contract.  The Adjudicator concluded that the termination of the Complainant’s employment was due to the differences and disputes between him and the Respondent, and that his dismissal was unfair.   The Adjudicator found that compensation is the appropriate remedy. The Adjudicator stated that he not been presented with evidence of mitigation of loss attempts by the Complainant.  
 
Decision

The Adjudicator upheld the Complainant’s complaint that he was unfairly dismissed and he required the Respondent to pay to the Complainant the sum of €4,000 compensation.

Our Commentary
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This case is a reminder to Organisations with CE Participants that although they are not employees they have legislative rights to be treated fairly and in accordance with the terms outlined in the CE Manual. Education and continuous development are some of the key aspects of the CE Scheme and for the Organisation and the failure of the Organisation in this instance to allow the participant to continue to a third year was a direct breach of the scheme core values.

Note on WRC:

The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
 
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
 
In addition to this the Labour Court has been reconfigured in order to hear appeals.

​The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.

Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include: 

• Advice on all Employment Law, Industrial Relations and HR queries or issues
• Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
• Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
• Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
• Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development

For further information in relation to our services, contact one of our HR & Employment Law Consultants – info@adarehrm.ie / 01 561 3594.

www.adarehrm.ie

WORKPLACE RELATIONS COMMISSION (WRC) CANCELATIONS

The WRC has postponed all Adjudication Hearings, Conciliation Meetings, Face to Face Mediations, and on-site Inspections from 13th March until further notice.

They have advised that they will follow up to schedule hearings at an appropriate time and subject to Government advice. However, given the nature of the present situation it may be a period of time before such hearings are in a position to proceed.

Therefore, the WRC Mediation Team will endeavour to contact parties, to offer them the option of telephone mediation. This may assist the parties to resolve the complaint speedily, without the need for adjudication.

The team at Adare Human Resource Management are happy to assist with managing this process for you.

WORKING FROM HOME DURING COVID-19

Many companies and individuals are being forced to introduce social distancing to contain the spread of the coronavirus. (COVID-19) The result is many people suddenly find themselves working from home at the last minute and many are doing so for the first time. Some may be finding this change a shock and are struggling about where to start. 

Those who already work from home and those who advocate for remote working are conscious that a hasty and poorly planned exclusion from the norm could result in a bad first experience for many but working from home could be a life-saving measure. 
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The introduction of successful remote working at a company level under normal circumstances takes time, structures, policies and a considered approach so you may need a steer on where to start. 

NEW WORLD OF WORK IS MORE THAN JUST MONEY

​Salaries are continuing to rise; that’s according to data released by the Central Statistics Office (CSO) in February. According to the data, average weekly earnings now stand at €783.62, an increase of 3.5% on the previous year. This follows on from an increase of 3.3% in 2018.

Research carried out on behalf of Adare Human Resource Management for its HR Barometer 2019 also backs up the CSO’s findings. Three quarters (75%) of organisations stated they had increased salaries last year by an average of 4% and half of the organisations we spoke with plan to increase salaries in 2020 and nearly one in four (38%) were unsure of plans to bump salaries.

The CSO figures also point to an increase in the average hourly rate, up from €23.33 in Q4 2018 to €24.17 in Q4 2019; 140% more than the minimum wage of €10.10 and 96% more than the living wage of €12.30.

Needless to say, there are significant variations in earnings across sectors with the highest average weekly earnings of €1,241.42 in the Information and communication sector, followed by the Financial, insurance and real estate activities sector at €1,115.02 while the lowest average weekly earnings were €381.50 in the Accommodation and food service activities sector.

But what does this tell us other than salaries are on the increase and it’s an employees’ market?
With staff retention and recruitment, the top two HR priorities for 2020, salaries are an obvious solution. Thirty percent of organisations surveyed for the HR Barometer stated that increasing salaries was the top initiative taken to improve employee retention in 2019. But pay shouldn’t be looked at in isolation as a silver bullet; it should be part of an approach looking at total reward, albeit an important one, particularly given the current annual average cost of living for a family somewhere between €50,000 and €60,000 depending on the sources.

New world of work

Flexible working arrangements (28%), social events (22%) and employee engagement initiatives (19%) all featured highly in terms of steps organisations are taking to help improve retention. This provides a clear indication that the traditional world of working is changing and fast.

Led by a greater emphasis on work life balance, the “new world” of working places greater value on a holistic view of the employer employee relationship. There have been numerous studies done to highlight increased productivity when the employee feels they, and their personal time, is valued.

But there must be a clear understanding of where the boundaries lie; employers cannot expect employees to answer calls or emails outside of agreed working hours, regardless of how “flexible” the arrangements are. There must be mutual agreement to how the process works and this must be respected by both parties.
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At Adare Human Resource Management, we have been working with a broad range of clients who have put flexible working arrangements in place. It’s important that these arrangements work for everyone, are monitored, analysed and measured to ensure outputs are not hindered; organisations have a commercial reality after all.
However, our experiences have been that when the balance is right, everyone benefits.

The Government's National COVID-19 Income Support Scheme

The scheme has been established to provide financial support to Irish workers and companies affected by the crisis.
 
In summary:

• A temporary wage subsidy of 70% of take home pay up to a maximum weekly tax free amount of €410 per week to help affected companies keep paying their employees. This is the equivalent of €500 per week before tax
• Workers who have lost their jobs due to the crisis will receive an enhanced emergency COVID-19 Pandemic Unemployment Payment of €350 per week (an increase from €203)
• The COVID-19 illness payment will also be increased to €350 per week
• The self-employed will be eligible for the COVID-19 Pandemic Unemployment Payment of €350 directly from the Department of Employment Affairs and Social Protection (rather than the Revenue scheme)
• Enhanced protections for people facing difficulties with their mortgages, rent or utility bills.

It follows from a range of supports already in place to help business through the crisis.
 
The Government is taking these extraordinary measures to help ordinary Irish citizens and families during this period of great economic and social stress.
 
These measures will be costly – with an initial estimated cost of €3.7 billion over a twelve-week period.
 
The Government believes these costs are necessary to ensure social solidarity with workers and their families affected by the crisis.
 
For queries relating to the coronavirus in the workplace, or any HR and employment law matters, contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594.