This legislation came into effect on 14th July 2003 and is intended to ensure that workers on fixed term contracts will not be treated less favourably than a comparable permanent worker.
Who is covered?
Any person on a fixed term contract (VETCH) but does not include an agency person working with a client, apprentices, trainee Guard or nursing or members of the Defense Forces.
What is a Fixed Term Contract Employee?
Any person under a contract to an employer where the end of the contract is determined by an objective condition - that is -
To what does it Apply?
Contract employees are entitled to be treated no less favourably than a comparable permanent worker in relation to all terms and conditions of employment. Except, in the case of a contract worker working less than 20% of the time of a comparable permanent worker, in relation to pensions.
What is a comparable permanent Worker?
A permanent employee not on a fixed contract is a comparable worker if -
In the case of a) and c) above one of the conditions must apply.
When can a Contract Employee be treated less favourably?
Employers may treat contract employees less favourably where they can prove objective grounds for such. An objective ground would be where the different treatment can be justified in that the difference in treatment does not relate to the status of the employee and is for the purpose of achieving a legitimate objective and is necessary to achieve that objective.
Pension - Please note as stated above where the contract employee worked 20% of the comparable employees time, this would be an objective reason for not applying pensions.
Entitlements based on hours worked
Where benefit is base don hours worked then a contract employee would be entitled to these benefits on a pro rata basis where they work lesser hours.
Can we renew Fixed Term Contracts?
Employers may renew fixed term contracts subject to below.
The employer must do so in writing no later than the date of renewal and must state the objective grounds for renewing the contract and the reason why no indefinite duration contract was offered.
FTC's commencing after 14th July 2003
Where a contract employee has been employed on two or more continuous fixed term contracts then the average duration may not exceed four years except where an objective ground is presented.
FTC's commencing before 14th July 2003
Where fixed term contract has been in existence for up to three years occurring before or after the date, the contract may be renewed for maximum of one year with the average duration not exceeding four years.
Employers must notify contract employees of permanent vacancies arising and also of training opportunities insofar as it is practical for contract employees to participate in them.
Employers should, insofar as is practicable, advise employee representatives as to fixed term contract workers in the undertaking.
When an employee has a dispute with an employer regarding their entitlement on this legislation they may refer the matter to the Rights Commissioner. The Rights Commissioner may;
Appeals of a Rights Commissioner must be made within six weeks of communication to the Labour Court. Where the decision has not been implemented the employee may refer it to the Labour Court within six weeks of communication. In such cases the employer is precluded from attending the hearing or producing any new evidence to the Labour Court.
Appeals of the Labour Court are to the High Court whose decision shall be final and conclusive.
From the 1st August the Workplace Relations Act 2015 introduced an amendment to the Organisation of Working Time Act 1997 and has amended Sections; 19, 20, 23; which set down the annual leave entitlements for employees. This amendment has the potential to impact both employers and employees significantly.
Accrual of Annual Leave during Sick Leave
The amendments to Section 19, 20, 23 of the Organisation of Working Time Act 1997 have introduced a legal requirement for the accrual of annual leave entitlements for employees during periods of certified sick leave.
Employees are now entitled to accrue annual leave whilst out sick and to carry over the leave accrued beyond the 6 months of the subsequent leave year, (as was previously prescribed in the Act) up to 15 months.
This means that the annual leave may be taken by an employee, absent due to certified sickness, up to 15 months after the expiry of the leave year in which the annual leave was accrued.
It is notable that this entitlement to accrue annual leave during periods of certified illness applies only to statutory annual leave and not to any leave governed by contractual arrangements.
Employers will now need to take the following steps:-
Employees are not entitled to pay when they are on sick leave, thus an employer should not agree to do so if requested.
Once the 15 month period has expired an employee is no longer entitled to be paid holiday pay due for that period.
The General Data Protection Regulations (GDPR) are coming into force on the 25th May 2018. As a regulation, the GDPR will have a direct effect on the Irish law system, including the Data Protection Acts 1988 & 2003 and the Data Protection Directive 95/46/EC.
The GDPR focus is on standardising the European citizen’s right to data privacy, as well as emphasising transparency, security and accountability by data controllers.
Fines: The GDPR is providing data protection authorities with administrative fines which can turn out to be devastating for organisations. It allows fining for non-compliance of up to €20mln or 4% of total annual global turnover (whichever is greater) for the most serious breaches.
The new regulation will make it easier for individuals to request copies of data relating to them.
At the moment employees are liable to pay a fee of €6.35 and wait for up to 40 days, for the copies of the data to be supplied to them.
However under the GDPR, this request is now free of charge and an employer now has only 30 days to process the request.
An employer is now also required to provide an employee with additional information such as information on how long data is being stored and the right to have inaccurate data concerning them corrected.
Mandatory reporting of data breaches has also been introduced.
At the moment only some organisations are obliged to do this. Once the GDPR comes into force, all organisations will be obliged to report any data breaches to the Data Protection Commissioner within 72 hours.
Breaches that are required to be reported are those that are likely to bring harm to an individual. In addition any concerned individual needs to be informed about the breach also.
A failure to report it could result in a fine, as well as a fine for the breach itself.
Some companies will be required to appoint a Data Protection Officer. Such organisations include:
If your organisation is compliant under the existing law, your approach will be valid under GDPR.
The following are the main principles of Data Protection.We recommend that you make sure that your organisation is compliant with these, as this will vastly help you in the case of any inspection under GDPR:
The GDPR introduces a number of significant changes that every employer must be aware of and be sure to comply with, in order to avoid significant penalties.. We recommend that Employers;
Finally, here are a few questions to bring you one step closer to being compliant:
This update is provided by the MSS HR Support Service. For further details on the General Data Protection Regulations or on other HR services please email firstname.lastname@example.org.
In a recent case, a book-keeper was awarded €12,000 from her former employer, a small retail company, for age discrimination, having forced her to retire at 66, despite there being no issues with her competence. Having worked for the Company for 12 years, the employee was forced by the company to retire at 66.
The Employee expressed a desire to remain in employment with the company and in response to this she was offered a fixed-term contract immediately following her retirement, an offer which she refused.
There was never a contract of employment/statement of terms issued to or signed by the employee, therefore it could not be argued that she had consented to the mandatory retirement age. Apparently the Company had previously tried to introduce them but the employer failed to do so when met with resistance from the employees.
The company’s contention was that the retirement age was necessary for the management of its business and also argued that there was an implied term and an oral contract with the employee that she would retire at 65 and that the setup of the Pension scheme in 2004 “clearly foresaw” a retirement age at 65.
On hearing the case, the Adjudication officer was satisfied that the claimant had established a Prima Facie case of Age Discrimination and the employer had failed to provide any objective justification for enforcing a retirement age.
The Adjudicator found that the employer’s explanation for justifying a retirement age was a “somewhat vague, anachronistic and unlawful view that it had the right to terminate employment at sixty five because it was traditional to do so. It (the company) seems have held this view honestly, in that it held the complainant in high regard as an employee and there was no element of any reflection on her conduct or competence.”
This case serves as an important reminder that employer’s must be able to demonstrate that they can objectively justify that the use of a retirement age achieves a legitimate aim for the Company or they face the threat of being found guilty of Age Discrimination. It also highlights that whilst having a retirement age in a contract or a Pension scheme does not automatically serve as a defence for Employers.
For further details on the Retirement Age or on other HR services please email email@example.com.