Employer Resources Newsletter - September 2021

Following the latest Work Safely Protocols that were issued recently, there are some key points that will support those in the nonprofit sector to open safely and stay open.

Much of the public health advice should still be adhered to such as mask wearing, physical distancing, hand and respiratory hygiene and the use of adequate ventilation. Other guidance outlined in the Protocols is outlined below.

Returning to the Workplace

The directive to work from home has been lifted and attendance at the workplace has begun again. But this must be done for “specific business requirements” and done on a “phased and staggered basis”.

For nonprofit Organisations with employees and volunteers out in the community, specific care and attention must be taken if undertaking work amongst the public, particularly for those who may be vulnerable. Specific risks and actions should be outlined in the COVID-19 Response Plan.

COVID-19 Response Plan

It is important that employers continue to update their specific COVID-19 Response Plans in line with the latest advice. The COVID-19 Response Plan follows similar principles as other health & safety documents in that it should:

Identify & assess the risks
Implement protective control measures
Clearly outline procedures in the event of infection or suspected infection
Document findings & regularly review the plan to ensure its effectiveness.

Employers should also have in place:

COVID-19 Policy Statement
Lead Worker Representative
Return to Work Form & Checklists
Employee communications on preventing the spread of COVID-19
Adequate ventilation
CO2 monitors where required
Provision of PPE where relevant
Adequate hygiene and cleaning
Ensure the correct use of face coverings.

Role of Lead Worker Representative (LWR): Every workplace, including nonprofit organisations, should appoint at least one LWR who is in charge of ensuring that COVID-19 measures are strictly adhered to in their place of work.

Employees can engage with their employer through the Lead Worker in relation to concerns in the workplace. If their concerns are inadequately dealt with in relation to the implementation of the Protocol within a workplace, an employee may raise these concerns with the Workplace Contact Unit of the Health and Safety Authority (HSA), who will review all complaints and will follow up as appropriate.

Communicate with employees: Information that should be provided by employers includes confirmation that risk assessment has been carried out as outlined in the response plan, confirmation that CO2 monitors are installed as outlined in the plan (if required), information on any vaccination programme and confirmation that where physical distancing is not possible, safety measures have been put in place.

Vaccines: It is worth reminding employers that they cannot mandate or ask employees if they have been vaccinated. Clear communication with employees to reiterate the importance of the vaccine is the appropriate approach.

Face-to-face interactions: The Protocols now stipulate that any face-to-face interactions and business-related travel should be “limited to those that are necessary”.

Remote & Hybrid Working: Employers, in consultation with their employees, to start to develop and finalise their long-term arrangements for blended or remote working having regard to their operational requirements and in-line with public health advice.

Health & Safety training: Given the absence of the majority of employees from the workplace for the past 18 months, we recommend that Organisations look to retraining employees on aspects of Health & Safety – obviously including COVID-19 prevention. Employers should also pay particular attention to employees who have been onboarded during lockdown and refresh their induction training plans and procedures.

Finally, with the planned removal of restrictions intended for 22 October, employers should ensure they are keeping a watchful eye on any changes to the Work Safely Protocols over the coming weeks and remember that the Protocols will remain in place after that date.

Background

The Complainant submitted her complaints to the Workplace Relations Commission on 24th May this year that listed three complaints in relation to pay, hours of work and contract of employment. She was employed by the Respondent in the area of Administration from 15 August 2016 to 7 May 2021 when she was made redundant.

Summary of Complainant’s Case

The Complainant stated she was entitled to 24 days annual leave, plus Public Holidays plus one Company Holiday, Good Friday as a full-time employee. The Complainant availed of Good Friday every year as a paid day off along with her colleagues. The Employee Handbook was referenced:

“All full-time employees are entitled to 24 days holidays each year. In addition, you are entitled to Public holidays and one Company holiday which is Good Friday.” Emails were presented from 9 April 2020 from the former CEO to the Complainant and her colleagues stating, “In keeping with tradition, Good Friday is a holiday for the organisation and staff avail of a ‘day off’. Further emails were presented between the staff and Interim CEO where she was told that Good Friday could be taken as an annual leave day as it was not a Public Holiday. It is the Complainant’s claim that the Respondent unlawfully deducted Good Friday from her wages in contravention of Section 5 of the 1991 Act and in breach of her terms and conditions of employment.

The Complainant claims it was submitted that the practice of carrying over annual leave was in place and recognised for the past twenty years and is provided for in the Employee Handbook under the heading of Annual Leave. Board minutes of 26 January 2021 where the Complainant, Interim CEO were present together with members of the management team were provided. Under the heading of AOB the Interim CEO noted there were a lot of holidays outstanding, and these days needed to be taken by the end of the financial year in June 2021. The Complainant explained that she did not have time to take the annual leave days due to her between January and the date of her termination in May 2021. She needed to be at work for certain periods each month to manage direct debits etc. The Complainant relied on an email of 18th May 2021 to the Interim CEO stating that she had 11 days for 2021 and 39 days carried over into the 2021 annual leave year plus 14 annual leave days owed through “tokens” or overtime. The 11 days for 2021 were paid to the Complainant when she was made redundant. The Complainant seeks compensation for her loss of the remaining 53 days.

The Complainant states she did not receive a contract of employment despite being employed for almost 5 years with the Respondent. An email from the Interim CEO dated 10 February 2021 requested that employees confirm “whether you have a contract?”. The Complainant replied by email on the same date stating she did not a contract.

Summary of Respondent’s Case

The Respondent submitted that a holiday on Good Friday was over and above her contractual entitlements of 25 days. The Respondent referenced Section 5 of the 1991 Act and in particular Section 5 (6) and submitted that the Complainant was note entitled to the payment for this day in accordance with her contract of employment.

The Respondent also relied on the Employee Handbook where it stated that the Complainant was entitled to 24 days annual leave together with Public Holidays and one Company Holiday, Good Friday. The Respondent further quoted the Handbook: “We strongly encourage employees to take their full holiday entitlement each year. Carrying holidays over to a new year may only be approved by the Chief Executive or the Deputy Chief Executive.”

The Respondent stated the Board never authorised the indefinite carry over of holidays or tokens. It was submitted that the Board were unaware until recent times that this had ever been authorised, but it was the previous CEO who permitted some employees to do this, but he had no authority to do so. An email dated 12 February 2021 from the Chief Operating Officer to the Interim CEO explained the “token” system of 1 token equated to 1 hour that could be taken as time in lieu. The email states the Complainant had 104 tokens. Reference was made to the practice been in place for over 17 years.

It was submitted on behalf of the Respondent that it was accepted that the Complainant did not receive a statement of her core terms of employment as provided for in the Terms of Employment (Information) Act 1994. However, it was further submitted that she did receive an Employee Handbook which set out the terms and conditions of employment. There was a request from a Board Member in 2020 to the Complainant (and all staff) to complete a HR file From. The Complainant returned the completed form on 9 October 2020. It was submitted that the Complainant was aware and in receipt of her terms and conditions in writing and not entitled to compensation.

Findings and Conclusions

Good Friday fell on 2 April 2021. The Interim CEO’s email notifying the Complainant and her colleagues of the change in status of Good Friday came one day before on 1 April 2021.

It is noted that despite the Interim CEO’s email wherein she states she did not have the “knowledge” that Good Friday was considered a company holiday, she was party to the email from the previous CEO on 9 April 2020 setting out that it was given as a holiday and even replied to that emailing thanking the CEO and wishing her colleagues a Happy Easter. Furthermore, the Employee Handbook expressly states that Good Friday was “Company Holiday”. Thus, the complaint is well founded.

The Respondent’s referenced emphasised that carrying over of holidays into the next annual leave year and could only be approved by the CEO or Deputy CE. However, the Respondent goes on to accept that the previous CEO “permitted some employees to do this” despite not having the “authority to do so” as the Board was never authorised the indefinite carry over of holidays or tokens. This does not make logical sense.

Despite the submissions of the Respondent, it can only be found in favour of the Complainant that she did accrue 14 days because of tokens or time in lieu earned. This decision is based on the email of the Complainant to the Interim CEO of 18 May 2021 and confirmed by the email presented by the Respondent from COO to the Interim CEO dated 12 February 2021 which also formed part of the Respondent’s submission.

Considering the Respondent’s email of 10 February 2021 requesting confirmation as to whether the Complainant had a contract of employment and the Complainant’s confirmation together with the request of the Board Member, the complaint is well founded. The Respondent was aware on two separate occasions of the Complainant’s lack of contract of employment still failed in its obligation to pursuant to s.3 of the 1994 Act.

Decision

All three complaints are well founded. The Complainant is awarded the sum of €115.38 which equals one day’s pay in compensation for the breach of the Payment of Wages Act 1991. The Complainant is awarded the sum of €6,115.38 representing the 53 days annual leave she was due upon termination of her employment in compensation for the breach of the Organisation of Working Time Act 1997 and the Complainant is awarded the sum of €1,153.85 representing two weeks wages in compensation for the breach of [Terms of Employment (Information) Act 1994.

Our commentary

This case highlights the importance for employers to comply with their own principles. The handbook sets out the rights of an Employee which must be upheld throughout the employment relationship. This decision is a good example of the high financial consequences of employers or senior management not adhering to company guidelines.

Lifting of suspension of Redundancy – what happens next?

As part of emergency measures brought in as a result of Covid-19, the Government suspended the right of employees to seek redundancy if they were temporarily laid-off or put on short-time due to the health crisis. That suspension is to be lifted on 30th September.

After this date, employees can claim a redundancy payment termed, notice of intention to claim, if they are laid off or on short-time, or a combination of both for at least 4 consecutive weeks or 6 weeks within a 13-week period (where 3 of those weeks are consecutive) if they have been in that position for at least 2 years.

Employers must respond to the request within 7 days. And, either accept the request for redundancy or offer a “counter notice”. If the employer does not give a counter notice, it is assumed that the request has been accepted.

A counter notice is where an employer states that there will be work available and will commence within the following 4-week period from the date of the request and the work will last for at least 13 weeks without lay-off.

Recent figures released by the Department of Enterprise estimate that between 24,000 and 56,000 redundancies are expected in the coming months once the financial supports for organisations end. And, the cost of restoring the right to request redundancy could cost between €30 million and €130 million.[1]

Under current employment law, employees are not entitled to redundancy payments for time spent on the Pandemic Unemployment Payment (PUP) or Jobseekers Benefit. To ensure employees are not at a disadvantage because of the impact of Covid-19, the Government also announced that it is setting up a scheme covering statutory redundancy covering the period of lockdown with a maximum payment of €1,860 per employee. This also means that employers will not have additional financial burdens who may be facing difficulties.

According to CSO figures, there were 143,606 people in receipt of the PUP at the end of August 2021. However, it is difficult to get a figure for those in the non-profit sector as the figures are not broken down by specific sector.

[1] Irish Times, 21/9/2021