The Impact of Employment Law at the START of the employment relationship
2 Internal Factors which can impact on the employment relationship
• Policies & Procedures in place within the organisation – this is an important internal factor that can have an impact on the employment relationship; for example if there is job share/flexible working arrangements in place this can help to promote a work-life balance for employees allowing them to spend more time with their families or completing studies, this can help with employee motivation and they will be less likely to miss work due to personal commitments.
• Employee involvement/participation – this is another important factor; it is a good idea to ask your employees for feedback on their thoughts of the company/organisation and what they feel could be done differently to improve working conditions, an example of this would be to provide surveys to the staff or to set up a Representative Committee to allow the employees voice any concerns/ideas they may have. This will help to motivate the staff particularly if their ideas are being actioned.
2 External Factors which can impact on the employment relationship
• Current economic climate – periods of economic downturn can have a major and potentially negative impact on the employment relationship, for example during the recession many employers lost profits and had to make cutbacks which involved downsizing the size of their companies and implementing mandatory redundancies on their employees .
• Availability of talent/Labour Market – as the economic situation has changed somewhat in Ireland in the last few years this has led to a new variety of talent available; a lot of skilled workers and graduates have emigrated but many of the people who have decided to stay in Ireland have gone into Third Level education to improve their knowledge and skills in certain areas in order to get jobs. There is also a variety of cultures now living in Ireland which could benefit employers seeking people with language skills for example. Also, as the retirement age is continuously rising this will result in the age of the workforce being higher which could also result in retaining the skills and knowledge within the company which is also important and beneficial to the employer.
3 Different Types of Employment Status
It is important to establish your status of employment in order to identify the rights and responsibilities you have at work and also to determine any benefits available to you.
1) Fixed Term Workers – this is popular at the moment as a lot of employers are taking people on for ‘specific purpose’ contracts. An interesting point to note for fixed term workers is that according to the Protection of Employees (Fixed-Term Work) Act 2003, employers cannot continually renew fixed term contracts and employees working on repeated fixed-term contracts are covered under the Unfair Dismissal’s legislation (although they need to have at least one year’s continuous service before they can bring a claim under the Unfair Dismissals Act) This is important as it prevents fixed term workers being taken advantage of and being treated unfairly by employers.
2) Part-time Employees have similar rights to full time employees when it comes to employment protection legislation, although in some instances a part-time employee will need to work a set minimum number of hours for a set period of time before gaining these rights. The Protection of Employees (Part-Time Work) Act 2001 provides that a part time employee cannot be treated in a less favourable manner than a full time employee.
3) Agency Workers – an agency worker is a person who has an agreement with an agency to work for another person. The legislation on Agency workers was brought into effect in 2012 so it is a brand new act (Protection of Employees (Temporary Agency Work) Act 2012) Agency workers do not have all the same employment rights as regular workers, temporary agency workers have the right to equal treatment in basic working and employment conditions. It is interesting to note that The Protection of Employees (Fixed-Term Work) Act 2003 does not apply to agency workers placed by an agency to work for an organisation. However, the Act does apply to agency workers employed directly by an employment agency.
3 Reasons Why It Is Important to Clearly Determine an Individual’s Employment Status:
1) Determines employees’ rights
2) It is easier to establish benefits available to the employee
3) Decides protection for employee
Employee Rights DURING the employment relationship
• Importance of work life balance and related legislation concerning holidays, rest periods, working hours and night working: Work-life balance can be achieved when an employee’s right to a fulfilled life inside and outside paid work is accepted and respected, to the benefit of the employee and the organisation/company. It is important for employees to be able to balance their life at work and at home, as having an equal balance can lead to a motivated and retained workforce. Legalisation plays a vital role on how work-life balance can be implemented. For example, the Organisation of Working Time Act 1997 provides that an employee cannot be forced to work more than 48 hours a week on average; meaning all employees can ensure they participate in personal external activities outside of the workplace, which in turn should reward the business with a dedicated and committed workforce.
• Family/parent-related legal support, including maternity leave, paternity leave, adoption leave and dependants leave: the Maternity Protection Acts 1994 and 2004 provide that female employees are entitled to 26 weeks Maternity Leave, with an additional 16 weeks unpaid if required. The Acts also provide that a pregnant employee is entitled to paid time off work for the purpose of receiving ante-natal care (for example doctor and hospital appointments) and also that they are entitled to return to work, to their old job or one equivalent in grade and location. Employers are not obliged to grant male employee’s paternity leave (either paid or unpaid) following the birth of their child in Ireland as Paternity Leave is currently not recognised in employment law in Ireland.
Annual leave taken following the birth of a child is treated in employment law in the same way as leave taken at any other time of the year. It is at the discretion of the employer to decide who can and cannot take annual leave at a given time. While male employees are not entitled under Irish law to either paid or unpaid paternity leave, they may be entitled to parental leave (Parental Leave Act 1998 and 2006 (amendment)). Parental leave entitles both parents who qualify to take a period of up to 14 weeks’ unpaid leave from employment in respect of children up to eight years of age. Where an employee has more than one child, parental leave is limited to 14 weeks in a 12-month period. This can be longer if the employer agrees.
Under the Adoptive Leave Act 1995 and 2005 (amended), only the adoptive mother is entitled to adoptive leave from her employment, except in the case where a male is the sole adopter. The current entitlement for Adoptive Leave is 24 weeks. You are also entitled to take 16 weeks’ additional unpaid adoptive leave after your adoptive leave ends.
Another support tool available to employees is The Carer’s Leave Act 2001 which allows employees in Ireland to leave their employment temporarily to provide full-time care for someone in need of full-time care and attention. Since 24 March 2006 the minimum period of leave is 13 weeks and the maximum period is 104 weeks (was 65 weeks). Carer’s leave from employment is unpaid but the Carer’s Leave Act ensures that those who propose to avail of carer’s leave will have their jobs kept open for them for the duration of the leave.
• 2 reasons why employees should be treated fairly in relation to pay:
1) Discrimination: for example if a man is doing the exact same job/role as a woman within a company/organisation then the rate of pay for each should be the exact same. If an employer pays someone less than their peers, or refuses them benefits that other equivalent employees have access to, because of their age, disability, race, sexual orientation, religion or beliefs, it could constitute unlawful discrimination.
2) Morale/Motivation: The psychological contract can have a significant impact on the organization if employees feel they are not treated fairly in relation to pay this can result in low morale and motivation among the other staff resulting in increased absence and poor performance. From my experience employees will always talk amongst each other and compare notes!!
• Main points of equalities legislation including the concepts of direct and indirect discrimination, harassment and victimisation
Direct discrimination is where an employer directly discriminates on the grounds of the person’s age, race, sex, disability, religion or sexual orientation. To establish direct discrimination, a direct comparison must be made, for example, in the case of disability discrimination the comparison must be between a person who has a disability and another who has not, or between persons with different disabilities.
Indirect discrimination occurs when practices or policies that do not appear to discriminate against one group more than another actually have a discriminatory impact. It can also happen where a requirement that may appear non-discriminatory. An example of indirect discrimination would be change to working hours, for example a shift change from 6am to 2pm to 8am to 4pm – female employees could argue this is indirect discrimation on the grounds of gender as they may now be unable to collect children from school due to the new shift pattern.
Victimisation in a discrimination context is where an employer treats an employee less favourably for one reason or another. An example of this would be an employee who provided evidence for an incident against a manager and was then treated less favourably by that manager afterwards.
Harassment is where an employer or an employee violates another person’s dignity or creates an uncomfortable or offensive environment for them. A new code of practice on harassment at work was approved by the Minister for Justice and Equality this summer. This provides guidance to employers on how to deal with the issue in their workplace and what to include in their policy which is important at keeping this issue out of the workplace.
• The concept of the ‘psychological contract’ and examples of policies and procedures which can underpin this: The function of the psychological contract is to reduce insecurity, as not all aspects of the employment relationship are addressed in a formal written contract; the psychological contract is a concept that attempts to balance expectations and encourage effort
Issues to be addressed at the TERMINATION of the employment relationship
• Differences between fair and unfair dismissal:
A dismissal is considered to be automatically unfair if the employee is dismissed for any of the following reasons:
– Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours – Religious or political opinions
– Legal proceedings against an employer where an employee is a party or a witness – Race, colour, sexual orientation, age or membership of the Traveller community – Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth – Availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave – Unfair selection for redundancy
Under the unfair dismissals legislation, redundancy is considered to be a fair ground for dismissal. However although a redundancy situation exists, an employee may have grounds for complaint if the manner of the selection for redundancy was unfair. They may qualify to bring a claim for unfair dismissal if they consider they were unfairly selected for redundancy or consider that a genuine redundancy situation did not exist
• Importance of exit interviews to both parties
Exit interviews provide and opportunity to talk with employees about what they liked or what they didn’t like about their job. An employer will get valuable information they can use to make positive changes within their company/ organization and it offers the employee a chance to provide their opinion which could result in the less likelihood of a court case. The purpose of the exit interview is to gain an insight into what factors led to the employee making the decision to resign. Sometimes in larger companies these can be done anonymously as some employees may not feel comfortable, this has both positive and negative sides, a positive being that the employee is more likely to be more honest if they are sitting in front of a computer or completing a survey rather than on a one-to-one basis, a negative of this however would be that as it is done anonymously it may be harder for the employer to gain the correct facts and info without knowing the person involved.
• Key stages to be followed in managing redundancies
The first stage of managing redundancy effectively should be planning; HR and line managers liaise to discuss the departmental structure. This is where the risk of redundancy becomes apparent. The next stage is fairly identifying the employees that are due to be put at risk by devising redundancy selection criteria. The next stage is to inform the employees and hold a consultation meeting. Once the employees are informed that they are at risk of redundancy, this should be followed up by at least one further consultation meeting.
The employer must be seen to consider any argument that the employee puts forward. If redundancy occurs employees will be informed in writing and be given an explanation of the redundancy payment that they will receive. The employee is then able to appeal against the decision, to show that the employer has actively considered alternative employment within the company for the employee. If there isn’t alternative employment and no appeals have been made, the next stage is to make the redundancy payment. After a redundancy has been carried out, employees can often feel deflated, so ideally advice should be offered on seeking alternative employment.