The Employment Lifecycle

The Employee Life Cycle: 19 Tips to Get it Right | AIHR Digital

Let us be honest, Irish Employment law is complicated and at times vague which challenges the most knowledgeable legal expert.  

This A-Z guide is a useful tool, but it is not definitive as every case is different.  It is just that ‘guidelines

Adoptive Leave

  • 26 weeks state paid + 16 weeks unpaid (can be taken before placement for foreign adoption).
  • Time off to attend pre-adoption classes.
  • Can postpone maternity leave if child is hospitalised if after 14th week (employer agreement).

Annual Leave

  • 4 weeks leave – 1.66 days per month, timing determined by employer, where possible.
  • During lay off or short time working, your employees are still employed, and their contract of employment remains in force.
  • This means they are entitled to a benefit for any public holidays that occur during the first 13 weeks of lay off.
  • The employee does not accrue annual leave during lay off but are entitled to take leave accrued before being laid off.
  • Certified illness while on annual leave may be re-couped.
  • Annual leave must be taken within the leave year or following 6 months if employee agrees
  • Cannot pay in lieu of annual leave unless employment is being terminated.
  • Entitlement to pay in advance for annual leave
  • Employer entitled to double pay staff for working public holidays or substituting within a month
  • Record leave for 8 years

Carer’s Leave

  • 13-104 weeks per “significant person”.  All at once or 6-week gaps between 13-week blocks unless otherwise agreed.
  • Purpose to keep them safe and help them throughout the day with their normal personal needs and/or protect them from being a danger to themselves
  • 12 months service requirement, no break in employment
  • 6 months before you can do it again
  • Full time care – Department of Social Protection (DSP) assessed plus GP medically also.
  • Pension, annual leave and public holiday entitlements reduced to first 13-week period only.
  • Protections against Unfair Dismissals and Redundancy Selection.

Contract of employment

  • A contract must be offered and accepted. It can be oral or written so avoid any oral promises.
  • Fixed Term Contracts or Specified Purpose Contracts may include waiver for Unfair Dismissals.
  • The employee, since March 2019, is entitled to receive part of their written statement containing core terms of employment within the first 5 days of commencing a job. 
  • They must receive the remaining terms in writing within 2 months, in accordance with the Terms of Employment (Information) Acts 1994–2014.
  • However, this requirement does not apply if you have been employed for less than a month.
  • Keep the contract on file until at least one year after the employee leaves.
  • Implicit terms are constitutional or common law rights which do not have to be written in the contract yet still hold.
  • State retirement age as there is no upper limit for redundancy payments.
  • Contractual entitlements override statutory entitlements only where they are greater.
  • Contract Of Service v. Contract For Service (Employment or self-employment).

Dismissal

  • Employees are protected by Unfair Dismissals legislation: One year’s service qualifies for protection regardless of hours worked except where insubstantial grounds exist.
  • Capability competence, qualification, conduct, statutory duty, redundancy are substantial grounds.
  • User of Agency Worker(s) is deemed to be the employer for dismissal purposes only. Request replacement if a problem arises.
  • The onus is on employer to prove dismissal was fair.  Reasonableness of decision to dismiss must be based on genuine belief founded on reasonable grounds after a full and fair investigation with natural justice pertaining.
  • Capability – Short term absences / Long term absence.
  • Conduct – assault, noncompliance unjustified absence (abuse), breach of contract or rules etc.
  • Give the reason in writing to the employee if asked within 14 days.
  • Constructive dismissal – persons conditions of work are made so difficult they feel obliged to leave
  • Employee has up to 26 weeks to make a claim. (52 weeks in exception circumstances)
  • Employer must communicate procedures within 28 days of employee joining (usually in contract)
  • Recommended warnings: Verbal-Formal-First Written-Final Written-Dismissal-Appeal.

Fixed Term (FTC)/Specific Terms Contracts

  • Must have a specific end date or completion of specific task or event (e.g., return of an employee)
  • Cannot be treated less favourably – though can be excluded from pension if <20% hours
  • There exist objective grounds for treatment in a less favourable manner
  • Written justification of fixed term contract extensions is required
  • Must have same access to training and must be informed about job opportunities
  • Where combined of more than one FTC exceeds 4 years, next contract must be indefinite
  • A single fixed term contract can be issued for any duration
  • When writing the contract, the employer excludes Unfair Dismissal at expiry.

Force Majeur Leave

  • Is for urgent family reasons owing to illness/injury of immediate family member presence of employee is indispensable.
  • Family equals children, spouse, partner, brothers or sisters, parents, or grandparents
  • 3 days in any 12 months and 5 days in 36 months

Equality

  • Equal pay for employees doing like work, of same length of service, to same standard
  • Discrimination: less favourable treatment than another in a comparable situation under the 9 grounds.
  • During recruitment, employment, training, promotion, work experience, or in conditions of employment.
  • Company must take reasonable preventative measures. Positive action is permitted.
  • Vicarious liability is where the actions of an employee are treated as that of the employer, regardless of knowledge or approval.
  • Victimization occurs where employer treats employee adversely for making a complaint.
  • Appropriate measures to facilitate disability– unless disproportionate burden financially
  • Bullying, Harassment and Sexual Harassment should be defined and covered

GDPR / Data Protection

  • Data must be held and disclosed for specific and lawful purposes only.
  • It must be adequate, relevant, and not excessive. It should not be kept too long in relation to the purpose.
  • Data must be open to examination by the data subject – includes appraisals, references received etc.
  • Data must be kept securely and must not be disclosed outside of purpose.
  • Care must be taken in destruction or disposal.
  • Data must be obtained and processed fairly
  • Data must be accurate and up to date
  • Reasonable security measures must be taken to protect the data.
  • Any monitoring and surveillance activities should be informed to staff along with the purpose
  • Public access to CCTV must be notified.

Grievance

  • A grievance is where an employee or group perceive a problem or grounds for complaint or dissatisfaction with the company.
  • It may arise from perceived unfairness, lack of consultation, environmental factors, -or inadequate communication.
  • Have a grievance procedure, issue to your employees, and follow it strictly.

Maternity Leave

  • 26 weeks state paid + 16 unpaid (2 weeks before, 4 weeks after)
  • Entitlement kicks in after 24th week of pregnancy, regardless of pregnancy outcome.
  • Rights expire with fixed term contract.
  • Four weeks written notice with medical cert.
  • Can terminate unpaid additional leave if ill (subject to employer agreement).
  • Can postpone maternity leave if child is hospitalized if after 14th week (employer agreement).
  • Paid time off to attend medical or ante/post-natal care (includes 2 classes for father)
  • Fathers entitlement to maternity leave on death of mother before 40th week
  • Right to breastfeeding breaks on site or offsite without reduction in pay for first 26 weeks
  • Employer should carry out risk assessment

Minimum notice

  • Minimum employer notice entitlements kick in after 13 weeks of service.
  • Employee must give notice of one week. May be waived in writing or paid in lieu.
  • Continuity of Service is broken by dismissal, renewal of fixed term contract after 3 months or voluntary leaving.
  • Continuity of Service not broken by lay-offs, strikes, transfer of business, leave, illness, re-employment within 3 months doing same work under fixed term or specified purpose contract.

Part Time

  • No right to part time
  • Cannot be treated less favourably (pro-rata) than fulltime worker though can be excluded from pension if <20% hours.
  • Entitled to same legislative protection except for casual workers (<13 weeks)
  • “Comparable Employee” implies same employer and like work, like performance, in like industry
  • Legislation includes those employed through an agency (the wage payer is employer, except for responsibility for Unfair Dismissal)

Parental Leave

  • 12 months service requirement, six weeks’ notice for parents or people “in loco parentis”
  • 26 weeks’ unpaid leave entitlement before child reaches 12 years (16 where disabled). Employee entitled to six-week blocks. Employment rights protected.
  • Multiple births mean multiple entitlements.
  • If employee falls ill during parental leave, can benefit from any sick leave scheme.

Parents Leave

  • Gives parents the right to take 2 weeks’ paid leave to look after their children aged under 1.
  • 5 weeks paid leave from April 2021.
  • Must give 6 weeks’ notice to your employer

Paternity Leave

  • Gives new parents other than the mother of the child can take 2 weeks leave in the first 6 months after the baby is born or adopted.

Payment

  • Entitlement to written statement of pay with authorised and valid deductions
  • Minimum wage currently €10.10 from Jan 2021.
  • An employee’s insistence on the minimum wage cannot lead to his dismissal even in first year.
  • Keep pay records for 3 years
  • There is no employment rights legislation covering overtime

Pension

  • Employer pension contributions continue through pregnancy
  • Employers must offer third party PRSA facilities where no company pension scheme exists.

Recruitment

  • Make sure your interview questions are centred on the requirements of the role, i.e., the job spec. 
  • The questions must be consistently applied. 
  • Take notes at interview, no personal comments. Write the notes as if they could be seen by the candidate and retain for one year.  Back up opinions up with evidence.
  • Always seek written consent from candidate before you contact referees.
  • Provide a checklist for references and do not note sensitive data (9 grounds).

Redundancy

  • Job ceases to exist due to financials, reorganisation or not enough work or closure. Cannot replace.
  • Collective redundancy: dismissal of 10% of staff or over for companies up to 300, otherwise 30 staff or more. Employee consultation to take place 30 days before notice of first dismissal.
  • Unfair Dismissals legislation receive up to 4 years pay for <20 years service or 5 years for >20.
  • Payment: qualify with 2 years service, 2 weeks per year plus one week (€600 per week ceiling)
  • Reckonable service (continuity of service) excludes absences >52 weeks due to accident or disease, >26 weeks due to illness, layoff, and unpaid maternity/adoptive leave in the last three years.

References

  • No obligation.  If given, they must be accurate and supportable. Must be marked private and confidential.
  • Avoid giving oral references as you have no control over the notes taken by the caller.
  • Employees should not discover facts about their performance for the first time from an unfavourable reference.
  • When giving a telephone references always request the questions in advance.
  • Opinions must be stated as such and supported with evidence.
  • Best practice is to give a purely factual reference based on employment dates than giving a bad one.

Sick Leave

  • Not covered under legislation. May be contracted for.

Summary dismissals

  • Grounds for summary dismissals are usually outlined as gross misconduct in the contract of employment or handbook.
  • Principles of natural justice apply. The decision is made by senior management.
  • Options: Verbal-Formal-First Written-Final Written warnings, suspension with pay for investigation or without pay for punishment (if contractually allowed), disciplinary transfer/demotion.
  • Redress: reinstatement or re-engagement, compensation (minimum 4 weeks basic but may include future loss)

Work Permits

  • Foreign nationals need employment permits from Department of Business, Enterprise and Innovation unless they are EEA, Swiss nationals, or official refugees. Bulgarian and Romanian nationals need permits still.
  • UK citizens do not need a visa or residency permit to live, work or study in Ireland. Under the Common Travel Area (CTA), UK and Irish citizens can live and work freely in each other’s countries and travel freely between them.
  • Work Permits must be surrendered to the Department within 4 weeks of termination.
  • The foreign national can apply for a permit where he has a written job offer and pays fee.
  • The employer can also apply for a permit on behalf of the foreign national.
  • The permit goes to the foreign national and a copy to the employer.
  • If duration is less than 2 years and pertains to that employer only. Renewable for up to 3 years normally.
  • The employer must seek to offer the job to those who do not require a permit first (No more than 50% of staff).
  • Intra EU posting of non-EEA national does not require a work permit

Working Time

  • Working time – 48hrs per week maximum averaged over 4 months, excludes on-call, standby, breaks.
  • Daily rest of 11 hours per 24 (shift workers on changing shift exempt)
  • Weekly rest of 24 hours plus daily rest
  • Breaks 15 minutes per 4.5 hours, 30 minutes per 6 hours
  • Record work times and work hours daily and any leave granted (& payment)
  • Keep records for 3 years.
  • Double Employment exceeding maximum limits makes employers & employee liable under Act.
  • NERA (National Employment Rights Authority) is the statutory body appointed

Bernie

Bernie Twomey is a HR Consultant and the founder of HR Made Simple located in Cork, Ireland

Published by hrmadesimple

Hi there and welcome to my blog, which supports the smaller but growing companies who do not have access to a Human Resources (HR) specialist. The goal of my consultancy is to offer practical HR advice to guide SMEs at competitive rates. Together we will ensure your business and employees flourish. For further information, please check out my various social media sites.

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