Court of Appeal Overturns Decision on Probation Dismissals

On the 16^th February 2021 the Court of Appeal issued their decision concerning Probation dismissals, in O'Donovan -v- Over C Technology Limited & Anor IECA 37 [2021] and overturned a High Court decision, providing much need clarification in relation the law and dismissal during probationary periods.

The High Court Hearing granted injunctive relief and held employees right to fair procedures were “not confined to cases where the dismissal was by reason of an allegation of misconduct" but also applied to cases of “poor performance" dismissals. This was done despite the fact that Mr O’Donovan was still well within his contractual probationary period.

The Court of Appeal held the High Court failed to give adequate weight to fact that Mr O’Donovan’s dismissal occurred during the probation period. In doing so the CoA stated that during the period of probation, all parties must be free to terminate the employment for any or no reason and, importantly, a dismissal for poor performance does not attract the employees right to natural justice and fair procedures, whereas dismissal for misconduct would.

This case highlights the need for employers to conduct adequate performance reviews of new employees during the probationary period, and to act on such issues in a timely fashion.

It should be born in mind that often performance issues and misconduct issues are often closely related and therefore may be difficult to distinguish between the two. Further employees dismissed during probation may still have redress under the Industrial Relations Acts, and the Unfair Dismissals Act, in certain specified cases such as for trade Union Activity, Equality grounds or for having made a protected disclosure.

Where an employer is seeking to dismiss an employee even during probation it is advised they seek professional advice before doing so.

Case Link: https://www.courts.ie/acc/alfresco/407a36b1-8660-4181-b6b8-9387a6b1b84c/2021_IECA_37%20(Unapproved).pdf/pdf#view=fitH

Lessons to take away from the recent WRC decision on ‘Remote Working’

The WRC, in a recently well publicised case, found in favour of an Operations Administrator claim for Unfair Dismissal in a Facilities Management Company.

The employee claimed she was constructively dismissed following a refusal by her employer to put measures in place, in this case working remotely, to address her health and safety concerns in relation to COVID -19.

Constructive Dismissal arises where it is considered reasonable for an employee to terminate his/her employment due to the conduct of their employer. The bar is quite high for an employee to win such a case, as the burden of proof is on the employee to prove that they had no choice but to leave, which is why this case is of significance.

Can Essential businesses refuse Remote Working?

Whilst some employers are of the view because they are considered ‘essential’ workplaces, they can use this as a reason to refuse such requests, this case shows employers cannot adopt such a blanket view on the matter. Currently we are operating under Level 5, which stipulates that people should work from home, unless it is essential for them to be in work. This is in addition to considering any health and safety concerns raised by employees and whether operationally it is possible to accommodate them.

Employers have a Duty of Care to employees and must  ensure the safety, health and welfare of their employees. This means carrying out risk assessments and identifying, where possible, if a risk can be eliminated, and if not, whether adequate control measures can be put in place to manage the risk.

In this case the Adjudicator believed “ the requirement that the complainant attend the workplace without such adequate consideration of the elimination of risk, amounts to repudiation of contract. This arises as providing a safe place of work is a fundamental term of the contract of employment. The respondent did not comply with the statutory framework by first seeking to eliminate risk, causing the complainant to attend work in greater danger. In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the complainant. Mitigation is not equivalent to elimination.”

So, does this mean that employers must accommodate Remote Working?

No. Firstly this decision has nothing to do with the right to work remotely but all to do with Covid and Health and Safety. Employers are still within their rights to refuse remote working. However, this case demonstrates the importance of being able to show that any such refusal was made following a risk assessment and to be able to demonstrate why objectively, it is not operationally feasible.

In addition to the proposals for remote working strategies of the Government, the case further signifies that remote working is going to be with us into the future and if current legislative proposals are introduced then employers will have to justify why they will not allow remote working.

Employers should take this time to review the roles within their workplaces, to reasonably assess which roles are suitable to remote working, which roles are not and ensure they can objectively justify such a decision if challenged. We would also recommend that employers prepare now Remote working policies.

Case reference https://www.workplacerelations.ie/en/cases/2021/january/adj-00028293.html

 

3rd February 2021

NEW CODE OF PRACTICE ON WORKPLACE BULLYING 

A new Code of Practice was developed and published on the 5th January 2021 (Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020) which replaces the Codes of Practice published by The Health and Safety Authority (HSA) and Labour Relations Commission (now Workplace Relations Commission - WRC).

THE NEW CODE OF PRACTICE

This Code of Practice provides practical guidance for employers on identifying and preventing bullying at work arising from their Duty of Care under the Safety, Health and Welfare at Work Act 2005. Under the Act, employers are expected to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk. Employees also have similar responsibilities under the Act to not engage in improper conduct or behaviour that is likely to endanger their own safety, health and welfare at work or that of any other person.

This Code applies to all employments in Ireland irrespective of whether employees work at a fixed location, at home or are mobile.

DEFINITION OF BULLYING

Bullying is defined as:

Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying.

While there were no changes made to the definition of Bullying, in comparison with the previous Codes of Practice, the new Code states bullying could include the use of cyber or digital means.

It further outlines a non-exhaustive list of behaviours that can be considered bullying, such as blaming a person for things beyond their control, repeatedly manipulating a person's job content and targets or excessive monitoring of work.

WHAT IS NOT CONSIDERED BULLYING

The new Code of Practice also helpfully describes situations which should not be regarded as workplace bullying and these include:

• Expressing differences of opinion strongly
• Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome
• Ordinary performance management
• Reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees (for example managing a worker's performance, taking reasonable disciplinary actions, or assigning work)
• Workplace conflict where people disagree or disregard the others’ point of view
(This list is not exhaustive).

Additionally, as set out in the definition above, a once-off incident of bullying behaviour may be an affront to dignity at work and may be unsettling, but does not of itself make for an adequate level of distress as to fall within the definition of bullying and other remedies should be sought for these scenarios. As a once-off, such behaviours cannot be presumed to be done in a targeted, purposeful and unremitting way.

SECONDARY INFORMAL PROCESS

The Code recognises that informal solutions are to be encouraged where possible. An informal approach may effectively address the unwanted behaviour without recourse to any other action. Sometimes the person who is alleged to be engaging in the behaviour is genuinely unaware that the behaviour being complained of is disrespectful or unwelcome or undermining and/or causing distress. Therefore, it is always recommended, to encourage employees to try and resolve issues that arise informally in the first instance, subject to the agreement of the parties involved.

Whilst informal resolution was always included in the Codes of Practice on Bullying, the New Code of Practice provides an additional option of a Secondary Informal Process.

If the first stage was unsuccessful or, if the complainant or the employer deems it inappropriate due to the seriousness of the issues, this more protracted yet still informal system can be put in place.

In this process, the employer may nominate a separate person who has had appropriate training and experience and who is familiar with the procedures involved to deal with the complaint. For each complaint that arises, such a person should be assigned to deal with that particular case. Effective guidance and training should be in place for those who are engaged at this level with the process.

The appointed person would meet with the complainant and the person complained against and establish their responses to the situation. Following this, a method should be agreed to progress the issue to resolution to assist both parties to return to a harmonious working environment without bullying being a factor.

The nominated person who was responsible for managing the complaint should keep a nominal record of all stages, including the complaint, the first meeting, action agreed and signed records of the final meeting. The purpose of the records, which do not include detail of discussions, is to provide evidence of the complaint having been met with an organisational response and attempt at resolution.

Following the resolution of the issue, both parties should be given support or periodical reviews, insofar as is reasonable, which, if necessary, could include counselling or other appropriate interventions or support services.

The new Code of Practice outlines also the formal procedure, as previous Codes did, however, recommends that all informal resolution avenues - as set out above - should be contemplated and where appropriate, exhausted before a formal process is invoked.

ANTI-BULLYING POLICY

In light of this new Code of Practice, we recommend all employers revise their Anti-bullying/dignity at work policies to make sure their policies are up to date.

While this Code refers to workplace bullying only and doesn’t include harassment cases, this does not prevent employers from having one policy/document encompassing procedures for processing both bullying and harassment cases.

Failure to follow the new Code of Practice is not an offence in itself. However, in any proceedings before a Court, the Labour Court or the Workplace Relations Commission, the code of practice shall be admissible as evidence and where the Code appears to the body concerned to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

Additionally, it is not enough to just have the policy in place.

New employees, at all levels, should be made aware of the policy as part of any formal induction process. Where a staff handbook is distributed to employees as part of the induction process, the Anti-Bullying Policy should be included.

Moreover, existing employees should receive updated and regular communication on the policy.

As outlined in the Code of Practice, bullying at work may arise, not only from work colleagues but also by non-employees, such as clients, customers, sub-contractors and business contacts. In line with that, a summary of the Anti-Bullying Policy should be prominently displayed at places where members of the public, clients, and customers attend.

You can find a copy of the new Code of Practice HERE.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

31st December 2020

National Minimum Wage 

With effect from the 1st January 2021, the National Minimum Wage in Ireland will be increased to €10.20 per hour for an experienced adult worker.

APPLICABLE EMPLOYEES

The full rate is applicable to any employee who is at least 18 years of age except as detailed below;

EMPLOYEE	MINIMUM HOURLY RATE
	2020	January 2021
Aged 20 or more:	€10.10*	€10.20*
Aged under 18:	€7.07*	€7.14*(70%)
First year from date of first employment over age 18:	€8.08*	€8.16* (80%)
Second year from date of first employment over age 18:	€9.09*	€9.18* (90%)           *Per working hour

WHO IS AN EXPERIENCED ADULT WORKER?

An experienced adult worker is an employee who is not:

• under the age of 18 years,
• or in the first two years after the date of first employment over age 18,
• or a trainee undergoing structured training as defined by the Act.

WHO DOES IT NOT APPLY TO?

The National Minimum Wage rate does not apply to the remuneration of a person who is;

• The spouse, father, mother, grandfather, step-father, step-mother, son, daughter, step-son, step-daughter, grandson, grand-daughter, brother, sister, half-brother or half-sister of an employer, employed by the employer, or
• An apprentice within the meaning of or under the Industrial Training Act, 1967, or the Labour Services Act, 1987.
• Alternative minimum rates may be set down under Employment Regulation Orders (EROs) of Joint Labour Committees or Sectoral Employment Agreements (SEAs) created by Employment Collective Agreements between Employers and Trade Unions.

WORKING HOURS

Full time, part time, temporary or casual employees are all entitled to the national minimum wage for the following hours worked;

All hours where an employee carries out an activity for an employer including;

• Overtime
• Time spent travelling on official business
• Time on authorised training/study during normal working hours

Excluding;

• Time on standby/on call away from place of work
• Time on authorised leave/notice or absent from work
• Travelling from residence to work or to a place of training

Where an employee’s hours of work are uncontrolled or unsupervised and their average pay would be not less than 150% of the minimum adult rate, they must maintain written records of hours worked and return these to the employer.

CALCULATION OF HOURLY PAY (RECKONABLE PAY)

Reckonable pay means payments that are allowable in calculating an average hourly rate of pay under the National Minimum Wage Act. The following payments may be taken into account when determining average hourly rate of pay.

• Basic Pay
• Shift Premium
• Piece/Incentive Rate.
• Commission
• Any payments under section 18 of the Organisation of Working Time Act, 1997 (zero-hour protection)
• Productivity related bonuses
• Board and/or lodging
• Service charge paid through payroll

Note: overtime, call-out premium, service pay, weekend and public holiday premiums, unsociable hours premiums, tips or gratuities paid through the payroll and allowances for special or additional duties may not be included.

PAY REFERENCE PERIOD

The period of time over which you may calculate the average earnings (Pay Reference Period) may be a week, a fortnight and must not be longer than one month.

Employers are obliged to advise employees of the pay reference period they are selecting for calculations of minimum pay. Employees must be notified in writing as part of their Terms and Conditions of Employment.

An employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

EMPLOYEE COMPLAINTS

An employee may make a complaint to the Workplace Relations Commission to investigate allegations of failure by the employer to pay the National Minimum wage.

Such a referral must be within 6 months from the date of receipt of a written statement or from the latest date the employer should have given a written statement.

Employees may not refer a complaint before requesting a written statement from their employer.

VICTIMISATION OF EMPLOYEES

No employer may victimise an employee for exercising their rights.
Any employee so victimised who cannot resolve the matter with their employer, may refer the matter to the Workplace Relations Commission or where dismissed, under the Unfair Dismissals Act 1977.

MINIMUM WAGE IN PRACTICE

With this most recent increase in the National Minimum Wage, an employee on minimum wage who works a full 39-hour week will now receive an additional €3.90 per week, or an extra €202.8 gross per year.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES

MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

 

8th December 2020

 

Updated Work Safely Protocol 

It has been some time now since the Government released the Return to Work Safely Protocol, setting down the many safety measures which Employers were recommended to take in order to protect their employee’s against the spread of COVID-19.

With many workplaces once again reopening their businesses, this document has recently been revised. As before, the document sets down the minimum measures required in every workplace to protect against the spread of COVID-19 and to facilitate employers re-opening their workplaces.

The main updated Public Health advice includes information on the management and control of outbreaks, selection of hand sanitisers, wearing of masks and ventilation of workplaces. The Protocol contains links directing employers and employees to a range of government departments and agencies where additional and more detailed information and guidance can be sourced.

Below are some of the new additions included;

LEAD WORKER REPRESENTATIVES

Whilst many employers will already have introduced one, the protocol sets down the requirement for a ‘Lead Worker Representative’ (LWR). The purpose of this role is to work closely with you as the employer and assist with the monitoring and implementation of the measures within the protocol. Communication within the workplace of who the designated LWR is, is important, as is ensuring that relevant training is provided.

SYMPTOMS

The Protocol updates the common symptoms to include the following;

• a fever (high temperature - 38 degrees Celsius or above).
• a new cough – which it now specifies can be any kind of cough, not just dry.
• shortness of breath or breathing difficulties.
• It also now includes loss or change in your sense of smell or taste – this means you’ve noticed you cannot smell or taste anything, or things smell or taste different to normal

SPREAD OF VIRUS

New information on how the virus is spread is detailed within the Protocol, highlighting that the virus can be spread on both surfaces where droplets have landed on them, as well as through airborne transmission, which can occur over a longer distance and persist for a longer time within a room. However, it notes that airborne transmission does not seem to have a major role in the spread of COVID-19. The importance of ventilation by keeping windows and doors open where possible is emphasised as a preventative measure.

Of note is that COVID-19 (coronavirus) can survive:

• up to 72 hours on plastic and stainless steel
• less than 4 hours on copper
• less than 24 hours on cardboard

IMPLEMENT CONTROL MEASURES

Employers are required to provide hand sanitisers (alcohol or non-alcohol based) where washing facilities cannot be accessed. The Protocol provides an appendix to guide employers in choosing a hand sanitiser.

RESPIRATORY HYGIENE

Employers should provide advice on good respiratory practice including the safe use, storage and disposal of face masks/coverings and the safe cleaning of face coverings and workers are required to adhere to them.

PHYSICAL DISTANCING

Working from home as much as possible is highlighted as part of the Physical Distancing measures advised.

With some employers confused around how to operate pods, the protocol provides an appendix which contains general advice in relation to the safe use of teams/pods.

In meetings employers should keep numbers to a minimum and must maintain physical distancing and proper ventilation at all times and avoid prolonged meetings, as attendees could be considered close contacts should an outbreak occur.

In situations where 2 metres cannot be observed and screens are being used, the protocol notes that screens do not need to be floor to ceiling but should be of an adequate height (e.g. cover a person in a standing position) and width to block the pathway from the nose and mouth to the face and workspace of the other persons. Screens may be fixed or mobile
depending on requirements including emergency access and should be regularly cleaned.

PRE-RETURN TO WORK FORM

Employers should have implemented return to work forms in order to identify any employee who may be suffering with symptoms and to prevent the spread of COVID-19.

The Protocol recommends the questions employers should include on their return to work forms, including questions around whether they have symptoms, if they have been diagnosed with COVid-19 in the last 14 days, are they waiting on the results of a test, have they been in contact with a confirmed case, any advice they have received to restrict their movements and whether they have been advised to cocoon.

DEALING WITH A SUSPECTED CASE OF COVID-19 IN THE WORKPLACE

The key message remains that a worker should not attend work if they are displaying any signs or symptoms of COVID-19 or are feeling unwell.

However, while a worker should not attend work if displaying any symptoms of COVID-19, the
protocol outlines the steps employers should put in place to deal with a suspected case that
may arise during the course of work, including a defined response structure identifying the team responsible for responding to a suspected case, appointing a case manager, identifying an isolation area (with a closed door) in advance and the route to it should be accessible to all including those with disabilities, identify additional isolation areas in the event of multiple cases and plans for handling same.

RISK WORKERS

High risk and very high-risk workers are addressed in the Protocol. Whilst employers should enable workers to work from home where possible, for those who must attend the workplace, the employer is required to ensure they are supported, and physical distancing is maintained.

TRAFFIC LIGHT SYSTEM

An overview of the Travel Traffic Light System which was introduced on the 9th November has been covered within the Protocol.

CONTRACTORS AND VISITORS

Workers, contractors, and visitors where there are restrictions in place for COVID-19 should be required to follow any protocols in place and be mindful of the government guidelines to prevent the spread of COVID-19. Induction and training programs should be provided. The Health and Safety free online course can be used; https://www.hsa.ie/eng/topics/covid-19/covid-19_coronavirus.html

PERSONAL PROTECTIVE EQUIPMENT (PPE)

In the context of COVID-19 risk, employers should check the HPSC website regularly for updates regarding use of recommended PPE.

CUSTOMER FACING ROLES

Employers should implement and adopt public health regulations in relation to use of face coverings in shops, shopping centres and other indoor settings.

Masks should be provided to workers who need to interact with customers/others where a physical distance of 2 metres cannot be maintained.

COMMUNITY SETTINGS

Outside of work, workers should be encouraged to travel alone if using their cars to get to and from work. If this is not possible, workers travelling to/from work together should travel as a team/pod and use face coverings.

Those travelling on public transport to and from work must wear face coverings and follow physical distancing guidelines. In addition, workers who may share accommodation outside of work should be advised to adhere to public health and Government advice.

Outside of work, workers should practice the same IPC measures, physical distancing, hand washing and respiratory etiquette and adhere to the specific requirements of the Resilience and Recovery 2020-2021: Plan for Living with COVID-19 as announced by Government.

Ventilation means the movement of outdoor air into a building, and the circulation of that air within the building or room. This can be achieved through natural means (e.g. opening a window) or mechanical means (e.g. a central heating, ventilation, and air conditioning) which are defined within the Protocol.

RECOMMENDATIONS

The above is just a summary of some of the aspects which were new to the Protocol, however employers are encouraged to read the Protocol and to ensure to adjust their COVID 19 response plan to incorporate any new recommendations.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

25th November 2020 

 

Suspension of Redundancy Rights Extension

The Government has once again extended the measures introduced to protect employers during the Pandemic. The suspension on the rights of employee’s to claim redundancy whilst on lay-off or short-time working is set to continue until 31^st March 2021, which will come as a relief for many employers who have no choice but to continue to place their employee’s on lay-off or short-time working.

Should you have any questions please do not hesitate to contact us.

 

19TH NOVEMBER 2020

DISMISSAL DURING PROBATION 

IS DISMISSAL DURING PROBATION REALLY AT THE EMPLOYER’S DISCRETION?

Employers would be aware that it is standard in Terms and Conditions of Employment to state that whilst a person is on probation, they are not subject to the terms of the Company disciplinary procedures. This clause was inserted because, in its absence, it has been argued in the past that a person on probation was subject to the disciplinary process which, of course, could extend beyond the probationary period. Thus, making termination of employment on grounds of suitability difficult within the twelve-month period thus falling under the Unfair Dismissals Acts.

However, it has become clearly established that any person is entitled to fair treatment when their employment is being terminated. In the recent decision of the Labour Court, LCR 22257, it stated “This Court has been clear and consistent in its view that workers on probation are entitled to the same fair processes that are applicable to workers with more than 12 months service with their employer, prior to any decision being taken to dismiss. The Court is not satisfied that the worker in this case was afforded a fair process.” The Court awarded compensation of €5,000 to the employee concerned.

The Labour Court also awarded compensation of €18,000 in a case where an employee, who had successfully completed their probationary period, but had not completed 1 years’ service was terminated and again fair procedure had not been followed. (LCR22255)

This should be a salient reminder to all employers that they cannot terminate employment without any risk where the employee has less than one years’ service or is on Probation.

Any employer who is considering terminating a person’s employment should not make these decisions lightly. We recommend employers consider the process they follow and ensure they have treated the employee fairly. Such treatment includes making the person aware of any difficulties with their performance during their probationary period and that they could be dismissed if there was no improvement. Only after having such discussions and there is no improvement, consider termination of employment. We would also recommend employers to make notations of any discussions regarding performance during a probationary period and not rely simply on verbal discussions which may have taken place during the course of a working day.

Finally, it should be noted that an employee should be advised, in advance of any such meeting that their employment may be terminated and that they may be accompanied by a work colleague or representative if they so wish.

Failure to do this will leave you exposed to claims and awards of compensation, and any decision appearing on the WRC and Labour Court website.

Should you require any further information or support please feel free to contact MSS, The HR People, and we will provide you with appropriate guidance on this or any additional matter in relation to Employment Law (01)8870690.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

10TH NOVEMBER 2020

EU TRAVEL TRAFFIC LIGHT SYSTEM 

The New EU Travel System has come into effect but what difference if any, will it make to our travel arrangements for the rest of 2020?

WHAT IS IT?

A system of traffic light colour coding which has been adopted throughout most of Europe which will prescribe when people will be required to isolate when they travel.

This system has not changed the overall recommendation not to travel but is there to provide guidance to those who have to travel. The coding is done as follows:

Green: - 14-day incidence rate is below 25 per 100,000, and
               Positivity rate is below 4%

Orange: - 14-day incidence rate is below 50 per 100,000, and
                 Positivity rate is above 4% OR
                 14-day incidence rate is below 150 per 100,000, and
                 Positivity rate is below 4%

Red: - 14-day incidence rate is above 150 per 100,000, and
           Positivity rate is above 4%

WHAT ARE THE RESTRICTIONS?

If you depart or come from a RED region, you must restrict movements for 14 days.

If you come to Ireland from an ORANGE region and you have proof of an approved negative PCR test which was taken three days before arrival, then there will be no restrictions.

If you come from a GREEN region you will not be restricted.

WHAT IF RATING CHANGES WHILST AWAY?

You will be governed by the status of the country you are leaving.

WHAT ABOUT INTERNATIONAL TRAVEL?

This system does not extend to international travel with the recommendation being that it is still unsafe.

DOES THIS CHANGE ANY PRACTICES FOR EMPLOYERS?

The protocols remain the same as before.

Employees should be reminded of the return to work protocols and of the procedures when applying for annual leave to travel. Employers should remind all employees that when applying for annual leave employees will be questioned whether they intend to travel abroad. Whilst the Company will take into account the need for rest and recreation of employees and to reconcile family responsibilities, employees should be made aware that annual leave requests will be considered on a case by case basis and may be refused in circumstances where the company is unable to accommodate any 14-day quarantine period.

It is recommended that employers, in advance of leave being sought or approved, advise the employee that they must produce the required evidence to support their status when they are returning to work, including evidence of arrival in Ireland.

It is important that everyone operates in line with these procedures as otherwise it may result in a resurgence of Covid 19 and further level 5 restrictions. It is everyone’s responsibility to comply with the protocols and by employers applying them properly it is encouraging all their workforce to do so as well.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

 

 

29TH OCTOBER 2020 

WORKING FROM HOME- CHALLENGES FACING EMPLOYERS

 

Most employers have now implemented working from home arrangements to some degree, which they might not otherwise have done were it not for COVID-19 and the restrictions implemented. This has proven to be an insightful exercise for some employers and has demonstrated that the need to physically monitor employees is not at the level they may have once believed necessary and that, in some cases, employees are working better at home than in the work place because of fewer distractions.

With any new working arrangement, there will be teething problems, and employers and employees will be faced with fresh dilemmas as they venture into these uncharted waters. Here are some of the recent examples we have seen employers face;

COMMUNICATION

Some employers are reporting communication issues or delays when it comes to home working.

Employers should explain the importance and benefits of maintaining communication at the same standard as when employees were based within the workplace so as to avoid isolation and allow for cross fertilisation of views and learning through sharing information.

Incorporating this into company policies will ensure no employees feel that they are being left out or unsupported.

Communication is not just important for work matters; it is also important for team morale. Scheduling group meetings and encouraging communication will help employees continue to feel part of a team.

PERFORMANCE MANAGEMENT

Whilst many employees are hitting their targets and standards to the level required, it would be amiss to say that this is always the case.

So, what can employers do if they suspect an employee is not working to the standards expected at home?

It is important that employees understand what level of performance is expected of them. If performance issues arise, it is important to establish the root of the problem, just as you would when the employee is at work. Take time to speak with the employee about the issues that are concerning you and explore with him/her what steps might be taken or support is required to bridge the gaps. Agree with the employee when might be a reasonable time to review the matters again and ensure to carry out a follow up review. Having tangible targets will help avoid any oversight of key issues. Remember, it may be beneficial sometimes to organise a physical meeting to discuss such issues rather than always remotely.

CHILD CARE

At this stage most creche’s and child minders are once again up and running, so there should be very few employees who are still struggling to get childcare in place. That being said, if employees are still experiencing this as an issue for them and so are juggling childcare whilst trying to work, employers have a couple of choices. Remind employees of their entitlement to family friendly entitlements such as Parental Leave, which is leave for the purpose of looking after children under the age of 12. However, this leave is unpaid leave, or Parents Leave, where the baby is less than a year, which is paid by the state.

There is no obligation on an employer to accommodate an employee who is unable to organise childcare or who is struggling to get their work done as a result, however, employers should behave responsibly and reasonably. Therefore, facilitating employees with a period of time to sort out alternative childcare would be advisable, albeit highlighting to the employee that the arrangement cannot be accommodated on a permanent basis and putting in place a deadline as to when the situation will need to be resolved.

Employers may also allow employees to use their annual leave or at the employer’s discretion to take unpaid leave.

WORKING FROM HOME ‘ABROAD’

As working from home becomes a new norm, talk of some employees selling their homes and moving to more affordable locations has started to stir. Some employees have also started to put forward the idea of moving abroad to work from home.

Employers need to consider these requests as there are some key factors to take into account;

Depending on how long the employee resides abroad, they may begin to accrue employment rights of that particular country and lose some of their entitlements in Ireland.

It is imperative that the employee and employer clearly agree in writing what are the key provisions of any working abroad arrangement.

Taxation and social insurance issues may also arise and employers would need to speak with their Tax Advisors prior to commencing any such arrangement.

Other factors to consider would include time zone differences and the impact that may or may not have on the employee’s ability to do the job effectively. Consideration should be given to GDPR implications. Employers would also continue to have a duty of care to these workers and would need to ensure adequate communication so that the employee feels supported in their role, as well as risk assessments. Policies should clearly state whether such a practice is or is not permissible and employers should be consistent in their approach. Employers are advised to continually update their Working from Home policies, addressing any key areas that require clarification.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

 

19TH OCTOBER 2020 

NEW RESTRICTIONS 

With the Government likely to make the decision to implement tighter restrictions this evening, there is no doubt some businesses will, regrettably, be faced with closures, once again.

With this in mind, employers may have to make decisions affecting their employees and it is imperative that employers follow fair processes when doing so.

In the first instance, employers are reminded of the importance of issuing protective notice to employees, if they believe there is a potential for further lay-off or short-time working. In this regard, it is noteworthy that the suspension on applying to be made redundant if placed on lay-off or short-time working is still applicable and must be extended again to protect employers from a deluge of redundancy payment claims.

We would recommend that employers send protective notice immediately to all employees, either by general memo or on the internal notice boards.

However, if employers do not have the time to issue this in advance of the restrictions announced, once the details of the new measures are confirmed, all employees should receive formal notification of the lay-off or short-time working measures being implemented, including details of when they are coming into effect.

DO I PLACE EMPLOYEES WHO ARE ON THE EWSS ON LAY-OFF?

For employers who are on the EWSS scheme, employees continue to be employed and are not considered on lay-off even if they are not required to attend work.

Please note that failure to pay an employee their normal wages whilst on the EWSS could be deemed an unlawful deduction in wages unless there has been agreement to reduce their wage or the person has been placed on short-time working under provisions in the employees’ terms of employment or by agreement. For this reason, if an employer is not in a position to pay the employee their full wages during the period of furlough and are only able to pay the subsidy amount to the employee, then it is an option to place the employee on ‘short-time working’ and the employee may apply for the Short-Time Work Support through mywelfare.ie for the days they are not required to work.

DOES THE EWSS ALLOW EMPLOYERS TO PAY AN EMPLOYEE LESS THAN THEIR NORMAL SALARY?

If an employee is required to work, the employee remains entitled to be paid for the hours he/she actually works at their normal rate, regardless of whether the employer is availing of the subsidy or not.

IF A COMPANY CANNOT AFFORD TO PAY THE EMPLOYEE AND THEY DO NOT QUALIFY FOR THE EWSS, WHAT BENEFITS ARE THE EMPLOYEES ENTITLED TO?

They may be entitled to apply for the COVID-19 Pandemic Unemployment Payment and can apply at the following address; https://services.mywelfare.ie/en/topics/covid-19- payments/covid-19-pandemic-unemployment-payment/

To apply for any benefits online, employees will require a myGovID account, which can be set up here; https://bit.ly/2FKD1Ii

They will also be asked to provide personal details and their bank details when applying, as well as identification, their public service card, passport or driving licence and proof of their address-e.g. a utility bill or letter from a government department.

The COVID-19 Pandemic Unemployment Payment is paid in arrears, with the payment week running from Friday to Thursday.

Alternatively, employees who are on short-time working, may be entitled to claim Short-Time work support. Short-Time Work Support is a form of Jobseeker's Benefit and is an income support payment for people who have been temporarily placed on a shorter working week by their employer.

This payment is made in respect of the days of work that have been lost.

To qualify for Short-Time Work Support, you must be:

• temporarily working a standard reduced weekly work pattern

• working 3 days or less per week having previously worked full-time

• be under 66 years of age

• be capable of work and be available for full-time work

• have enough paid or credited social insurance (PRSI) contributions at class A, H, S or P

For further information in relation to lay-off, short-time working or redundancies, please contact MSS for advice.

This update is provided by the MSS HR Support Service.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

15th October 2020

COVID-19 and Data Protection

Some employers, despite protocols in place, are still uncertain as to whom, if anyone, they should contact in the event of a confirmed case of COVID-19. With all the different guidelines this is quite understandable.

If an employee advises you they have COVID-19, or symptoms, the first question you should ask them is have they contacted their General Practitioner and what were they advised. Secondly who have they been in close contact with at work. If this is at work they should be either sent to the isolation area in the premises or sent home immediately whilst they contact their doctor.

Close contact includes anyone who has been situated within 2 metres of another person for more than 15 minutes.

Can an employer notify their employees of a suspected/confirmed case?

Employers have a duty of care under the Safety, Health and Welfare Act to protect their employees. Therefore, there is a legal basis to process personal data, including health data, where is it deemed necessary and proportionate to do so.

According to the Data Protection Commission, “Measures taken in response to Coronavirus involving the use of personal data, including health data, should be necessary and proportionate. Decisions in this regard should be informed by the guidance and/or directions of public health authorities, or other relevant authorities”.

For this reason, we would recommend employers require their employees follow the guidance and/or directions of public health authorities/General Practitioners in relation to any contact tracing. 

Any disclosure of the identity of affected individuals must be clearly justified. 

Where advised an employee is positive, if possible, the employer should notify the close contacts identified, avoiding the disclosure of the relevant person and by simply advising the employee that they have been in contact with an individual who has been a confirmed case and they should be isolated and contacting their GP.

So, whilst there is some legal basis for processing personal data related to an employee’s health, disclosing of this information to other employees should be limited and proportionate in order to avoid a breach of GDPR.

 

30th September 2020 

Should Employers Require Workers To Get The Flu Vaccine?

 

Autumn is the time when employers and employees begin to worry that they are at risk of contracting the normal influenza infection.

Covid Employer protocols are likely to complicate things when employees develop symptoms similar to those of COVID-19, requiring isolation and testing. This is particularly concerning for those who are not in receipt of any sick pay from their employers, as inevitably they will suffer a loss.

SO, SHOULD EMPLOYERS BE REQUIRING EMPLOYEES TO GET THE VACCINE?

In the first instance, safe working procedures are an essential line of defence against infections. Employers fortunately should have in place Covid working Protocols which contain many measures to protect against cross infection. Regardless of this, this is a good time to carry out risk assessments again and ensure working practices are adequately controlled and safe. This will help to provide maximum protection against influenza.

Other steps might include, issuing health awareness leaflets and information to employees, encouraging healthy habits to help prevent the contraction of the normal influenza and making staff aware of the vaccination.

Employers cannot force workers to avail of a vaccination, however they can offer to pay for the vaccination where a person is not eligible for a free one.

In doing so, make sure  sufficient information is provided to employees in relation to the benefits and drawbacks of any vaccination  and  the employee should be asked to sign a document accepting that the Company is not liable should the vaccination be ineffective or they suffer any side effects.

At the end of the day it is a personal choice for every person, but in these strange times, employers need to start thinking about their strategy when it comes to minimising the potential effect of the normal influenza and the damage that any related absences will have in the weeks and months ahead.

25th September 2020

What Have The New Donegal Restrictions To Do With You?

 

What have the recent announcements of Level 3 restrictions to do with employers, when it seems they are more community / home based infections.

Firstly, where there is any additional restriction imposed this means that some businesses have to restrict or close their activities.

Secondly, the risk of infection coming into the workplace grows.

Thirdly, it is clear that many infections are arising from people dropping their guard.

WHAT CAN EMPLOYERS DO ABOUT THIS?

There are clear protocols that should be in place when at work, but it is only natural that people are becoming complacent as they grow tired of all of this.

As an employer you should revisit all your practices and re-enforce the importance of complying with them – Do an audit with your worker representative of all the Protocols– remind all staff of the importance of certain behaviours.

If you encourage safe habits in the workplace, there is a greater chance that these habits will be maintained outside of work and in the home.

They are simple habits – Stay apart – Wash your hands regularly – Wear a mask to protect yourself and not infect others – be conscious that this infection recognises every opportunity.

Stay safe and keep your work colleagues, family, friends, and strangers safe.

25TH AUGUST 2020

GUIDELINES ON THE EMPLOYMENT WAGE SUBSIDY SCHEME (EWSS) 

Guidelines were released on the 14th August for the new Employment Wage Subsidy Scheme (EWSS), which is an economic support for businesses. There is a possibility there may be changed going forward and we will update you as soon as any are announced This scheme will run from the 1st September until the 31st March 2021.This scheme replaces the Temporary Wage Subsidy Scheme (TWSS) which ceases on 31 August 2020.

Eligible employers claiming TWSS in respect of eligible employees may continue to claim TWSS in respect of these employees for pay dates up to 31 August 2020. The following questions provide a summary of the key aspects of the new scheme and how it will operate;

When can I claim the EWSS for employees?

If on the TWSS from 1 September 2020.

What does the Scheme provide for?

The scheme has two elements:

• It provides a flat-rate subsidy based on the numbers of paid and eligible employees on the employer’s payroll; and

• It charges a reduced rate of employer PRSI of 0.5% on wages paid which are eligible for the subsidy payment.

Does the EWSS impact employee entitlements or the employment contract?

The scheme does not affect any legal obligations that the employer may have to their employee as regards any terms, conditions or employment entitlements.

How will the scheme be administered?

Like the TWSS it will be administered by Revenue on a “self-assessment” basis. Proof of eligibility will not be sought at the registration stage. Revenue will review eligibility in the future, based on risk criteria. Employers should ensure to retain their evidence/basis for entering and remaining in the scheme.

When and how will the subsidy be paid?

Unlike the TWSS the subsidy will be paid by credit transfer directly to the employer, once a month in arrears, as soon as practicable after the 14th of the following month (Return due Date).

What do employers require in order to be eligible?

Tax Clearance

Employers must possess a valid tax clearance certificate to enter the EWSS and maintain tax clearance for the duration of the scheme, provided all other conditions are met. Employers can check their current tax clearance status through ROS. Further information can be found at

https://www.revenue.ie/en/onlineservices/services/manage-your-record/apply-for-tax-clearance-online-using-etc.aspx

In addition, for the duration of the scheme, an employer must be able to demonstrate that:

• their business is expected to experience a 30% reduction in turnover or orders between 1 July and 31 December 2020 looking at the period as whole rather than on a monthly basis; and

• this disruption is caused by COVID-19.

This reduction in turnover/orders is relative to;

• the same period in 2019 where the business was in existence prior to 1 July 2019; or

• where the business commenced between 1 July and 1 November 2019, the date of commencement to 31 December 2019; or

• where a business commenced after 1 November 2019, the projected turnover or orders for 1 July 2020 to 31st December 2020.

Subsidies received are taxed on the employers, as part of their trading income, but are ignored in the calculation of the 30% reduction in turnover.

How does the Self-Assessment work?

Employers must undertake a review on the last day of every month (other than July 2020 and the final month of the scheme) to ensure that they continue to meet the above eligibility criteria.

When undertaking a review employers need to include all sources of trade income specifically including sales, donations, State Funding etc.

What do employers do if they no longer qualify?

They must deregister for EWSS through ROS with effect from the following day (that being the 1st of the month) and cease claiming the subsidy.

If an employer becomes aware prior to the end of the month that they will no longer meet the eligibility criteria (e.g. unexpected donation or grant received at the start of a month), they should deregister immediately and cease to claim subsidies.

Employers will not be required to repay subsidies that were correctly claimed prior to deregistration.

Can I reregister after being deemed ineligible?

If circumstances change and the employer is again eligible, they can reregister and claim from the date of reregistration.
It is not possible to backdate the claim to include the period of deregistration.

Who is an eligible employee?

Eligible employees include;

Employees who are on the payroll and in receipt of gross wages of between € 151.50 and € 1,462 per week during the period of the scheme (1 September 2020 to 31 March 2021).

There are no restrictions on taking on new employees or movement of employees under the Transfer of Undertakings (Protection of Employment) (TUPE) legislation, provided such recruitments/movements are undertaken for legitimate business purposes and not with the intention to maximise subsidy claims.

Certain categories of employees are specifically excluded in legislation, those being:

• Proprietary Directors. However, there may be exceptions for some proprietary directors, details of which will be provided in due course.

• Connected Parties who were not on the payroll and paid at any time between 1 July 2019 and 30 June 2020. (Connected parties include brothers, sisters, linear ancestors, linear descendants, aunts, uncles, nieces, nephews of an individual and their spouse.)

A person is connected to a company if they alone or together with their connected parties can exercise or acquire control of more than 50% of the issued share capital or voting rights, the greater part of distributions, or the greater parts of assets distributed on winding up.

Additional employees for whom subsidy should not be claimed include:

• employees working in a business division or related group entity not expected to suffer a 30% reduction.

• employees employed otherwise than as part of a business e.g. domestic employees such as childminders, housekeepers, gardeners etc.

Safeguards will be included to minimise abuse.

What is the weekly subsidy rate?

The rate of weekly subsidy the employer will receive per paid eligible employee is as follows:

Employee Gross Weekly Wages		Subsidy Payable
Less than €150.50		Nil
From €151.50 to €202.99		€151.50
From €203 to €1462		€203.00
More than €1462		Nil

 

For pay periods other than weekly, gross weekly wage will be calculated by dividing the returned gross wage by the number of insurable weeks included (subject to maximum divisors set by the system).

Gross wage, as reported on the payroll submission, includes notional pay and is before deduction of items such as pensions and salary sacrifice.

It excludes any DEASP benefits which employees may have mandated to be paid to the employer (e.g. illness/maternity/adoptive, etc.). Such monies should continue to be included in non-taxable pay as normal and are ignored when calculating the amount of the subsidy to be paid.

Can employer’s claim monthly subsidy payments?

In order to provide monthly subsidy payments to employers, EWSS can only be claimed in respect of payroll submissions of at least a monthly pay frequency i.e. quarterly/yearly/biyearly/other claims will not be processed.

How does the Registration Process work?

A new registration process needs to be followed for EWSS.

Employers must file their payroll submissions electronically through Revenue Online Service (ROS).

Eligible employers will be able to register for EWSS through ROS from 18th August. The date of registration cannot be back dated prior to the date of application and does not need to be back dated if a claim will be submitted in respect of payments in July/August.

Employers will be required to declare that they are eligible for the Employment Wage Subsidy Scheme and that they agree to the Terms and Conditions of the scheme and are aware of the consequences of non-compliance.

Registration applications will only be processed if the employer is registered for PAYE/PRSI as an employer, has a bank account linked to that registration, and has tax clearance.

Where an employer files an EWSS payment submission without first registering for EWSS, it will be rejected in full.

As registration cannot be backdated, its imperative registration is undertaken prior to the first pay date in respect of which EWSS is being claimed.

How will the subsidy operate for payroll purposes?

EWSS will re-establish the normal requirement to operate PAYE and normal PRSI on all payments. This includes the regular deduction and remittance of income tax, USC and PRSI at the normal rates.

Employer PRSI will be reduced to 0.5% in respect of employees for whom a subsidy is payable.

Employers will continue to operate payroll as normal and report employer and employee PRSI deductions based on the employee’s appropriate existing PRSI classes.

The employer must include ‘EWSS’ as the payment type in the ‘Other Payments’ section on the payroll submission and input the digit zero or one cent as the amount of other payment made.

Employers should not include the EWSS ‘Other Payment’ details on the payslip they provide to the employee. Where an employer makes a submission to Revenue with ‘EWSS’ included in the other payment field for employees who are not eligible for a subsidy, a message will issue through ROS upon submission requesting that this does not occur in the future.

Such payslips will also not be eligible for the reduced rate of PRSI and will be excluded from the PRSI credit calculation. On receipt of an eligible EWSS payroll submission from a registered employer, Revenue will calculate the subsidy payable by reference to the gross wage, pay frequency and insurable weeks reported on the payslip.

If an employer does not have tax clearance on the return due date, their subsidy payment will not be processed and once they have obtained tax clearance, they will need to contact the National Employers Helpline to request that the refund issue.

Employers are required to make submissions to Revenue by the pay date. To avoid any delay in payment of subsidy to an employer or posting of the employer PRSI credit, submissions need to be made by the return filing date of the relevant month e.g. September pay dates need to be filed by 14 October to be included in the October payment. Any amendments or submission of EWSS payroll after the return due date will be subject to a review by Revenue which will unavoidably lead to a delay in payment.

How will the subsidy be processed by Revenue?

At the end of every month, Revenue will process the payroll submitted and post a statement into the ROS inbox of employers by the 5th of the following month, setting out the amount of subsidy due to be paid to the employer. This will allow time for necessary amendments to be made, prior to the return filing date.

After the return due date, the system will process the claim and make the payment into the designated bank account as soon as practicable thereafter.

How will the Reduced Employer PRSI rate of 0.5% be processed?

As employer’s PRSI in their payroll submission will be at a higher rate than the 0.5% available under the scheme, Revenue will calculate a PRSI ‘credit ’due to the employer by recalculating employer PRSI using the scheme rate of 0.5% (where employer PRSI returned is more than 0.5%) and subtracting this from employer PRSI due as reported in the submission.

On the 14th of the following month (Return due Date), Revenue will post the PRSI ‘credit ’ that is due and payable for that month to the employer’s monthly payroll return, reducing the overall payroll taxes balance due.

To avoid any delay in posting the employer PRSI credit, submissions need to be made by the return filing date of the relevant month e.g. September pay dates need to be filed by 14 October to be included in the October calculation. Any amendments or submission of EWSS payroll after the return due date will be subject to a review by Revenue which will unavoidably lead to a delay in the posting of the credit.

Can I claim subsidy for employees who were ineligible for the TWSS during July and August?

In recognition of the exclusion from TWSS of new entities, seasonal employees and new hires, EWSS eligible employers, in respect of eligible employees, can backdate a claim for EWSS to 1 July 2020 in certain limited circumstances as follows:

• The employer was not eligible for TWSS; or

• employees who were not eligible for TWSS. (Employees were excluded from the TWSS because their net wages exceeded the tapered amounts allowed under the scheme, are not eligible)

These will be dealt with as part of a ‘sweepback ’with payment made in September.

How to make claims for July/August?

• Before 5 September, employers will electronically provide required information including; employee name, PPSN, employment ID, payment frequency, insurable weeks, commencement date, etc., using a template which will be available on revenue.ie in late August,

• Revenue will upload this information and calculate the total subsidy due to be paid.

• The subsidy will be paid into the designated bank account as soon as practicable after 14 September.

• No additional submissions or amendments will be processed on or after 14 September in respect of July/August.

The reduced rate of employers PRSI of 0.5% is also applicable to eligible payments in July and August 2020. Revenue will calculate the difference between the employer PRSI returned and 0.5% and overnight on 14 September, will credit any excess.

Will compliance checks will be carried out?

To ensure compliance, Revenue will undertake assurance checks in relation to the scheme.

What records are required?

All records relating to the operation of the scheme must be retained by employers, specifically including those supporting the expectation that turnover or customer orders will reduce by the requisite 30%, together with details of the monthly reviews that must be undertaken.

What if an employee has two employers?

Some employees have more than one employment with more than one eligible employer.

In such instances, each employer makes its own claim (where appropriate) for the employee.

Where employees are included in more than one payroll by an employer (e.g. on a weekly payroll for wages and monthly payroll for bonuses), subsidy entitlement must be calculated by aggregating monies paid under both payrolls.

Where additional payments are being made for the same payment date whereby two payslips are being processed for the same pay date, these also must be aggregated when calculating subsidy entitlement.

Debt Warehousing

Under the Financial Provision (Covid-19) (No.2) Act 2020, debt associated with the COVID-19 crisis may be deferred or ‘warehoused’.

The scheme allows for the deferral of unpaid VAT and PAYE (Employers) debts arising from the COVID-19 crisis for a period of 12 months after a business resumes trading.

The debts will be addressed by way of a phased payment arrangement at a lower interest rate of 3% per annum which represent a significant reduction from the standard rate of 8% or 10% per annum depending on the particular tax owed.

The period covered by the debt warehousing scheme is the time during which the business was and is unable to trade due to the COVID-19 related restrictions and includes two months after the business re-commences trading.

The Act also introduced a reduced interest rate of 3% per annum to apply to tax debts that cannot be warehoused, i.e. older debts not associated with COVID-19.

The reduced rate is available across all tax types where the agreement is made by 30 September and applies from the date of the agreement.

Businesses with warehoused debts or debts covered by a Phased Payment Arrangement (PPA) can, provided all other conditions are met, participate in the EWSS. Further information on the above initiatives can be found at;

https://www.revenue.ie/en/corporate/communications/documents/debt-warehousingreduced-interest-measures.pdf

Revenue recommends that employers engage with these initiatives as soon as possible by making contact with the Collector General’s Division to ensure they have all returns filed and payment arrangements in place. Once this is done, tax clearance should be applied for through ROS.

This is required to facilitate registration for EWSS and timely receipt of subsidies.

Full details of the guidelines released are available on the revenue website;

https://www.revenue.ie/en/corporate/communications/documents/ewss-guidelines.pdf

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

31ST JULY 2020

THE EMPLOYMENT WAGE SUBSIDY SCHEME 

The new Employment Wage Subsidy Scheme (EWSS) comes into effect from the 31st July 2020 and is the successor to the Temporary Wage Subsidy Scheme (TWSS), which will cease on the 31st August 2020. This business support focuses primarily on business eligibility and unlike the TWSS, provides a flat-rate subsidy to qualifying employers based on the numbers of paid and eligible employees on the employer’s payroll.

This scheme is expected to continue until 31 March 2021. Between the 31st July and the 1st September 2020 both schemes will run in parallel and any person entered into a scheme after the 31st July will have to qualify under the EWSS.

Based on the legislation as published, key features of the EWSS are set out below. The legislation has not yet been signed into law but is expected to be shortly.

QUALIFYING CRITERIA FOR EMPLOYERS

The scheme will apply to businesses who are employers who, because of Covid-19 related restrictions, are unable to pay their liabilities and who have filed all required PAYE, VAT and employment contributions returns.

To qualify for the scheme, a Company must be able to demonstrate that:

• the business will experience a 30% reduction in turnover or orders between 1 July and 31 December 2020
and
• this disruption is caused by COVID-19.
This reduction in turnover or orders is relative to:
• the same period in 2019 where the business was in existence prior to 1 July 2019
• the date of commencement to 31 December 2019
• or
• where a business commenced after 1 November 2019, the projected turnover or orders.

A company will be required to undertake a review on the last day of every month to ensure it continues to meet the above eligibility criteria. If it no longer qualifies, it should deregister for the EWSS with effect from the following day (that being the 1st of the month).

CHILDCARE BUSINESSES

Childcare businesses registered in accordance with Section 58C of the Child Care Act 1991 are also included in the scheme.
ELIGIBLE EMPLOYEES The scheme is expected to be open to all sectors and both new hires and seasonal staff will be eligible –such employees were previously outside of the scope of the TWSS. Certain categories of employees are currently to be excluded (such as proprietary Directors and connected people who have not received emoluments during the period March 2020 to 30th June 2020). Safeguards will be included to minimise abuse.

The scheme will be administered by Revenue on a 'self-assessment' basis. The EWSS will re-establish the normal requirement to operate PAYE on all payments. This includes the regular deduction and remittance of income tax, USC and employee PRSI.

From 31 July:
• TWSS employers can claim for non-TWSS employees (new hires) under the new EWSS.
• Non-TWSS employers, who have not previously availed of TWSS, will only be eligible to apply for the EWSS.
• TWSS employers will still be able to rehire eligible employees and continue to operate TWSS to 31 August 2020.

SUBSIDY SUPPORT

The level of subsidy the employer will receive is per paid employee:

Level of subsidy the employer will receive is per paid employee:

Employee Gross Weekly Wages	Subsidy Payable
Less than € 151.50	Nil
From € 151.50 to € 202.99	€151.50
More than € 203 and less than € 1,462	€203.00
More than € 1,462	Nil

 

This support will be backdated to 1 July for employees of qualifying employers who did not qualify for TWSS.

PRSI

A 0.5% rate of employers PRSI will continue to apply for employments that are eligible for the subsidy.

Publication

In line with international practice a list of employers availing of EWSS will be published in January 2021 and April 2021 to www.revenue.ie.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

27TH JULY 2020

NON-ESSENTIAL TRAVEL 

On 21st July the Department of Foreign Affairs published an important travel advisory update in relation to Covid-19 which included the much anticipated ‘Green List’ of countries that have low levels of Covid-19, similar to or below that of Ireland.

Whilst there has been much confusion surrounding this list, we now finally have some clarity on what it means.

Most importantly, it remains the guidance of the Government, that the pandemic is not over and the that the safest thing is to avoid ‘non-essential travel’ overseas.

This list means that anyone travelling to Ireland from a ‘Green List’ location, will no longer have to restrict their movements for 14 days on arrival. However, this list will be reviewed every fortnight.

These ‘Green List’ locations are:

• Cyprus
• Estonia
• Finland
• Gibraltar
• Greece
• Greenland
• Hungary
• Italy
• Latvia
• Lithuania
• Malta
• Norway
• Monaco
• San Marino
• Slovakia

The list does not include Great Britain; however, Northern Ireland is exempt from any travel restrictions. It is also important to note that the advice remains to avoid travel by cruise ship even in countries on the ‘Green List’.

GUIDANCE FOR EMPLOYERS ON TRAVEL ABROAD

Whilst the guidance from the Government remains for all Irish Citizens and Residents to avoid unnecessary travel, it is possible that more employees will now be considering travel abroad.

In the first instance, it is important that employers communicate their Company policies in relation to the international travel of its employees. Therefore, we would recommend that employers send a notification to all staff outlining their policy and procedure in that regard.

Such a policy should inform employees that upon receipt of annual leave requests, the company will ask them to disclose if and to where they intend to travel, if abroad during their annual leave.

TRAVELLING FROM COUNTRIES NOT ON THE “GREEN LIST”

The Covid rating for all other locations which are not on the ‘Green List’ remains unchanged at either to ‘avoid non-essential travel’ (“orange”) or to ‘do not travel’ (“red”). Therefore, citizens and residents returning to Ireland from these countries will be required to restrict their movements for 14 days.

Restricting movements means staying indoors in one location and avoiding contact with other people and social situations as much as possible.

Employers will naturally be concerned about the level of disruption that the 14 days isolation period could cause for their business and operations if employees choose to travel abroad to countries not on the ‘Green List’.

It should be made clear to employees that if they are requesting annual leave for travel to countries which are not on the ‘Green List’, that in addition to the normal considerations with regard to accommodating the period of annual leave i.e. operational considerations, the need for rest and recreation or to reconcile family responsibilities, consideration will also have to be given as to whether the company is in a position to facilitate the 14 days isolation period on their return.

Employees should be reminded that the Company must maintain a certain level of staff in order to sustain its operations, therefore it may not always be possible to authorise annual leave that will require an isolation period thereafter.

In circumstances where annual leave for non-essential foreign travel to countries not on the ‘Green List’ is authorised, employees should be reminded that they must restrict their movements for 14 days on return, if still required at that time, and that they must not return to work during this period. They should also be informed of how this 14-day period will be treated for pay purposes. In particular, employers may wish to advise them that additional annual leave or pre-authorised unpaid leave should be used to cover this 14-day period.

TRAVELLING FROM COUNTRIES ON THE ‘GREEN LIST’

Employees travelling to locations on the ‘Green List’ should be advised that they must still follow the public health guidelines of the local health authorities and to continue practicing physical distancing measures, hand hygiene and respiratory etiquette etc.

We are also mindful that the list is to be reviewed every two weeks, which means that changes could be made whilst employees are travelling to these countries that could result in isolation periods being re-introduced on their return or employees could be subject to travel restrictions due to new measures introduced in the countries themselves. Therefore it should be made clear to employees that should they be unable to return as a result of restrictions introduced by the country that they have travelled to, how this period of leave will be treated and whether additional annual leave or unpaid leave will be provided during this period.

RETURN TO WORK PROTOCOLS

It is recommended that regardless of whether an employee is travelling during their Annual Leave or not, that return to work protocols should be in place for all employees following return from annual leave, wherein they are once again requested to confirm whether they have travelled abroad and to where, if they are suffering from symptoms and if they have been in contact with any confirmed cases of COVID.

Finally, all employees should be advised that when on leave they should comply with normal distancing and other Covid guidelines to minimise the risk of infection or spreading the virus.

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

10TH JUNE 2020

EMPLOYER UPDATE 

TEMPORARY WAGE SUBSIDY SCHEME 

MATERNITY RELATED AND OTHER PROTECTED BENEFITS

Over recent weeks it has been identified that the TWSS was unable to recognise persons on Protected leave who were not paid within the pay periods used for assessment. This has now been addressed on the 8th June. The changes are detailed below:

INCLUSION FOR BENEFIT

Where an employee returning to work after Maternity, Adoptive, Paternity or Parental leave, or directly related unpaid leave, or having received Health and Safety, Parent's or Illness benefit, it is understood that in some cases their income during the pay periods used for assessment, may have only consisted of the relevant benefit paid directly by DEASP, or may have been nil, where the employee, was on unpaid leave. As a result, the employee may not have been on the payroll on the 29 February, or been paid in January or February 2020 and, consequently, either did not qualify for the TWSS or qualified for a reduced subsidy.

WHAT CAN AN EMPLOYER APPLY FOR?

An eligible employer can request Revenue to treat an employee as an eligible employee for the purposes of this scheme where that employee returns (or is due to return in the coming weeks) to employment following; Maternity, Adoptive, Paternity or Parental leave, or directly related unpaid leave, or having been in receipt of Health and Safety, Parent's, or Illness benefit paid by DEASP for the month of February 2020.

An eligible employer wishing to include these employees in the scheme must make a request to include that employee in the scheme and provide details to Revenue through ROS MyEnquiries.

As part of the process the employer will confirm that the employee has returned to employment and, for the month of February 2020, was on Maternity, Adoptive, Paternity or Parental leave, or directly related unpaid leave, or was in receipt of Health and Safety, Parent's or Illness benefit.

WHAT WILL REVENUE PAY?

On receipt of each request, Revenue will check DEASP data to ensure that the employee was in receipt of Maternity, Adoptive, Paternity, Health and Safety, Parent's or Illness benefit payments or was off the payroll after receiving such benefits, whether the employee has returned to work and, also previous payroll submissions to ensure previous gross pay is comparable with that declared in the downloadable form by the employer. Revenue will determine a “Calculated Revenue Net Weekly Pay” (CRNWP) for each employee concerned. This is equivalent to the Average Revenue Net Weekly Pay (ARNWP) used in TWSS.

Using the CRNWP, Revenue will calculate the relevant employee’s Maximum Weekly Wage Subsidy (MWWS) and will provide this, along with other necessary information, to the employer.

MULTIPLE EMPLOYMENTS

Where a returning employee has more than one employment, Revenue will calculate the CRNWP at employment and employee level and provide information to each employer on the MWWS applicable for that employment. The subsidy will be backdated to the date of recommencement of employment or from 26 March 2020, whichever is the latest date.

EMPLOYEES RETURNING FROM LAY-OFF

In the case of individuals who had been in receipt of the Pandemic Unemployment Payment (PUP), no retrospection will apply for the periods the individuals had been in receipt of these income support payments. However, a subsidy may be included in future wage payments during the period of the scheme if the employee is no longer in receipt of PUP and has returned to employment.

Where a person has been paid their full pay and benefit entitlements while absent, the employer does not have to apply as, in these cases, full payroll details for this employee for January and February 2020 are available and these employees are already eligible for the scheme.

Revenue have stated that they will make best efforts to process applications for employees under these arrangements within a matter of days, with a view to finalising any claims for the employer’s next payroll run. Refunds in respect of previous pay dates will take longer to process and are expected to take a number of weeks.

More detailed information can obtained from: https://www.revenue.ie/en/employing-people/documents/pmod-topics/guidance-on-operation-of-twss.pdf

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

 

19TH MAY 2020

EMPLOYEE PROTOCOL

THE RETURN TO WORK PROTOCOL

 Following the guidelines introduced within the Government’s Return to Work Protocol (RTWP), we have put together the attached ‘Employee Protocol’, which we hope will act as a starting point for employers when putting sufficient measures in place. This document is aimed at helping you to best prepare your workplaces and your employees for a safe return, as set down in the Protocol.

Businesses will of course need to edit this document accordingly to reflect their specific arrangements and measures in place, which should be closely linked to their risk assessments and any other steps taken.

Along with any other measures deemed necessary following your risk assessments, we would recommend that employees are carefully taken through the Handbook once adjusted to suit your business needs and existing policies. You should ensure that as much as reasonably practicable employees understand what is covered within, including those for whom English is perhaps not their first language, as per the requirement under the Safety, Health and Welfare At Work Act 2005.

Once understood, it is recommended that employees confirm by signing the confirmation sheet, that they have understood the measures outlined within and agree to adhere to them.

Should an employee have any concerns regarding the document or measures in place, it is advisable to listen to the concerns raised and to explain and reassure the employee where necessary to help alleviate any anxiety or uncertainty that may exist.

Employers are reminded that this document is merely a guide as to the steps that can be taken, and that they should seek guidance and assistance from their designated Health and Safety Advisors as appropriate.

WORKING FROM HOME

With the new protocol requiring the continuation of remote working for the coming months, policies and procedures on Working from Home should be reviewed. In line with this, we have attached a sample policy and documentation which employers can adapt accordingly to suit their own business operation.

Relevant Documentation: 

• Working from Home Policy
• Working from Home Application Form 
• Display Screen Equiptment Risk Assessment 2020 for Home working 
• Covid 19 Employment Protocol
• Covid 19 Confirmation of Receipt of Employment Protocol

 

This update is provided by the MSS HR Support Service

FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED FROM:

JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690

13th May 2020

EMPLOYER UPDATE
Return to Work Safely Protocol

As we move towards the next phase in the Roadmap for re-opening the economy, the Government has drawn up a mandatory return to work protocol to facilitate a safe return to work.
The Return to Work Safely Protocol, incorporates current advice about measures to reduce the spread of COVID-19. As the advice issued by the National Public Health Emergency Team (NPHET) continues to evolve, it should be noted that this Protocol is subject to change. This Protocol is a general document applicable to all industry sectors and this Employer Update is a summary of the document issued on the 8th May. Employers and workers have a shared responsibility to implement the measures contained in the protocol in their place of work.

Communication and Training

• Every workplace will need to have at least one worker representative in place to address the COVID-19 requirements, who will be clearly identifiable and will receive the relevant and necessary training.
• This representative can be an existing safety person or be chosen by the employees
• Employers will have regular meetings with the worker representative(s) and will consult on safety measures to be implemented in the workplace.
• The employer should use an appointed occupational Safety and Health Officer or an external competent person to ensure the effective implementation of infection prevention and control measures in the workplace.
• Information and guidance should be provided to workers, about COVID-19, how it spreads, cleaning routines, waste disposal, hand and respiratory hygiene,
physical distancing, use of Personal Protection Equipment (PPE) and work equipment, where relevant.
• Employers will be required to provide COVID-19 induction training for all workers.

Identify and isolate workers who may have symptoms of COVID-19

The prompt identification and isolation of potentially infectious individuals is a crucial step in protection.

Employers must:

• keep a log of contacts/group work, to facilitate contact tracing.
• inform workers and others of the purpose of the log.
• display information on symptoms of COVID-19.
• provide up to date information on the Public Health advice issued by the HSE and Gov.ie. The worker representative(s)
should be involved in communicating this advice in the workplace.
• instruct everyone on steps to follow if they develop signs and symptoms of COVID-19.

Workers should:

• make themselves aware of the signs and symptoms of COVID-19 and monitor their own wellbeing.
• self-isolate at home and contact their GP promptly for further advice if they display any signs or symptoms.
• report to managers immediately if any symptoms develop whilst at work.
Workplace Changes or Policies

Employers should:

• communicate sick leave policies and amend as appropriate in line with normal procedures.
• agree through negotiation with workers/Trade Unions any temporary restructuring of work patterns required to implement prevention measures in the workplace, taking into account sectoral agreements in place.

Prevention and Control Measures

Pre-return form: At least three days before returning to work, a pre-return to work procedure and form (attached) should be put in place and completed by both employers and workers.

Employers must:

provide induction training for all workers which, at a minimum, includes: -

• the latest up to-date guidance:
• what a worker should do if they develop symptoms of COVID-19;
• details of how the workplace has been organised;
• an outline of the COVID-19 response plan;
• identification of worker and employer contacts;
• any other sector specific advice that is relevant;
• put in place controls identified in the risk assessment to prevent a spread of COVID-19;
• implement temperature testing in line with Public Health advice.
• identify the team(s) responsible for responding to a suspected case
• appoint an appropriate manager(s) for dealing with suspected cases.
• designate an isolation area and the route to the designated area, which should be easily accessible and as far as is reasonably practicable accessible by people with disabilities.
• plan for the possibility of one or more persons displaying signs and have additional isolation areas identified or a contingency plan for dealing with same.
• ensure the designated area can isolate the person behind a closed-door or be in an area away from other workers.
• provide as is reasonably practicable:
• Ventilation, i.e. via a window,
• Tissues, hand sanitiser, disinfectant
and/or wipes,
• PPE; gloves, masks,
• Clinical waste bag
When accompanying an individual to the designated isolation area:
• maintain social distancing of at least 2 metres from the symptomatic person at all times.
• provide a mask for the person presenting with symptoms
• assess whether the unwell individual can immediately be directed to go home and call their doctor and continue self-isolation at home.
• facilitate the person presenting with symptoms remaining in isolation if
necessary until they go home and/or facilitate them calling their doctor.
• the worker shall avoid touching people, surfaces and objects, cover their mouth and nose with the disposable tissue provided when they cough or sneeze and put the tissue in a waste bag.
• arrange non-public transport home or to hospital for medical assessment if necessary.
• carry out an assessment of the incident which will form part of determining follow-up actions and recovery.
• arrange for appropriate cleaning of the isolation area and work areas involved.
• provide advice and assistance if contacted by the HSE.

Workers will:

• complete and return the Pre-Return to Work form three days before they return to work.
• inform their employer if there are any other circumstances relating to COVID-19, not included in the form, which may need to be disclosed to allow their safe return to work.
• self-isolate at home and contact their GP promptly for further advice if they have any COVID-19 symptoms.
• stay out of work until all symptoms have cleared following self-isolation.
• participate in any induction training provided by the employer.
• complete any temperature testing as implemented by the employer and in line with Public Health advice.

Hand Hygiene

Employers must:

• ensure that appropriate hygiene facilities are in place to accommodate workers adhering to hand hygiene measures.
• make available advice and training on how to perform hand hygiene effectively:
• display posters on how to wash hands in appropriate locations.

Workers must:

• ensure they are familiar with and follow hand hygiene guidance and advice.
• wash their hands with soap and water or with an alcohol-based hand rub regularly and in particular: -
- after coughing and sneezing,
- before and after eating and preparing food,
- if in contact with someone who is
- displaying any symptoms,
- before and after being on public transport,
- before and after being in a crowd,
- when arriving and leaving the
workplace/other sites,
- before having a cigarette or vaping,
- when hands are dirty,
- after toilet use.
• avoid touching eyes, mouth, or nose.
• use the facilities to support hand hygiene (for example hand sanitiser/hand wipes/hand washing facilities).
• not share objects that touch their mouth, for example, bottles or cups.
• use own pens.

Respiratory Hygiene

Good respiratory hygiene and etiquette is also necessary.

Employers must:

• provide tissues as well as bins/bags for their disposal.
• empty bins at regular intervals.
• provide advice on good respiratory practice.

Workers must:

• adopt good respiratory hygiene and cough etiquette.
• ensure they are familiar with and follow respiratory hygiene guidance.

Physical Distancing

The current recommended distance to be maintained between people to minimise risk of transmission is 2 metres.

Employers must:

provide for physical distancing across all work activities and this may be achieved in a number of ways:
• implement a no hand shaking policy,
• where office work is essential, work must be organised in such a way that multiple occupancy of office premises is avoided and/or physical distances are maintained,
• organise workers into as small as is reasonably practicable teams who consistently work and take breaks together.
• organise breaks in such a way as to facilitate maintenance of physical distancing during breaks, stagger canteen use, extend serving times, reduce cash transactions
• reorganise and rearrange working and break areas.
• consider closing canteen facilities if public health measures including social distancing cannot be facilitated.
• allocate specific times for collections, appointments and deliverables,
• conduct meetings as much as possible using online remote means. If face to face meetings, the length and numbers attending should be kept to a minimum and maintain physical distancing at all times,
• provide one-way systems for access/egress routes in the workplace where practicable,
• adapt existing sign-in/sign-out measures and systems e.g. biometrics/turnstiles, to ensure that physical distancing can be maintained,
• ensure workers who share collective accommodation at a place of work are grouped in fixed teams that are as small as is reasonably practicable and consist of individuals who also work together.
• As far as is reasonably practicable,
each team should be provided with their own communal facilities (washrooms, kitchens and communal rooms). If this is not possible, employers should implement phased use and an enhanced cleaning regime.
• accommodation must be regularly cleaned and ventilated either manually (by opening windows and doors) or mechanically.
• sleeping accommodation should normally be occupied singly.
• additional rooms must be provided for early isolation of infected persons.
• prevent gatherings of workers in the workplace at the beginning and end of working hours.
• implement physical distancing during any outdoor work activity.
• for outdoor work activities, facilities for frequent hand hygiene should be provided and should be located close to where workers are working.
• install physical barriers, such as clear plastic sneeze guards between workers,
• maintain at least a distance of 1 metre or as much distance as is reasonably practicable,
• where 2 metre worker separation cannot be ensured by organisational means, alternative protective measures should be put in place,
• make face masks available to the worker in line with Public Health advice.

Working from Home;

Office work should continue to be carried out at home, where practicable and non-essential work.
The employer should develop and consult on any working from home policy in conjunction with workers and/or Trade Unions. Advice on working from home on a temporary basis is available
from the Health and Safety Authority.

At Risk/Vulnerable Workers

If an at risk or vulnerable worker cannot work from home and must be in the workplace, employers must make sure that they are preferentially supported to maintain a physical distance of 2 metres.

Business Travel, Contractors and Visitors

• Business trips and face-to-face interactions should be reduced to the absolute minimum.
• For necessary work-related trips, the use of the same vehicles by multiple workers is not encouraged. The number of workers who share a vehicle, simultaneously or consecutively, should be kept to a minimum as far is as reasonably practicable, for example by assigning a vehicle to a fixed team.
• Workers should be encouraged to travel alone or at a maximum be accompanied by one passenger who shall be seated in adherence with physical distancing guidance.
• Workers should be provided with hand sanitisers and cleaning equipment for their work vehicle.
• Workers, contractors or visitors visiting workplaces where there are restrictions should follow the site infection prevention and control measures
• a system for recording visits to the site(s) by workers/others as well as visits by workers to other workplaces should be put in place by employers and completed by workers as required.
• provide induction training for contractors and visitors to the workplace.

Cleaning

Cleaning of work areas must be conducted at regular intervals. Further information on cleaning in non-healthcare settings is available from the ECDC at:
https://www.ecdc.europa.eu/sites/default/files/documents/Environmental-persistence-of-SARS_CoV_2-virus-Options-for-cleaning2020-03-26_0.pdf

Employers must:

• implement regular cleaning of frequently touched surfaces. If disinfection is required it must be performed in addition to cleaning, never as a substitute for cleaning.
• ensure contact/touch surfaces such as tabletops, work equipment, door handles and handrails are visibly clean at all times and cleaned at least twice daily.
• implement modified cleaning intervals for rooms and work areas. Cleaning should be performed at least twice per day and whenever facilities are visibly dirty and provide workers with essential cleaning materials to keep their own workspace clean
• increase number of waste collection points and ensure these are emptied throughout and at the end of each day.
• modify use of hot desks to ensure that these are made available to identified staff and have appropriate cleaning materials in place to clean the area before using.

Personal Protective Equipment

Examples of PPE include gloves, goggles, respiratory protection. In the context of a COVID-19 risk, employers should check the HPSC website regularly for updates regarding use of recommended PPE.
• PPE must be selected based on the hazard to the worker.
• Employers must provide PPE and protective clothing to workers in accordance with identified COVID-19 exposure risks and in line with Public Health Advice.
• Workers should be trained in the proper use, cleaning, storing and disposal of PPE.
• Gloves are generally not required for infection prevention and control purposes. Where necessary, they are not a substitute for hand hygiene and hands must be cleaned whenever gloves are removed. Limitations on wearing time and workers’ individual susceptibilities (allergies, etc.) must also be considered.
• For particular PPE, such as respirators, these must be properly fitted and periodically refitted, as appropriate.
• PPE needs to be consistently and properly worn when required. In addition, it must be regularly inspected, cleaned, maintained, and replaced, as necessary.
Note: wearing of masks is not a substitute for other measures outlined above. However, if masks are worn, they should be clean, and they should not be shared or handled by other colleagues. Employers and workers should keep up to date with the latest Public Health advice issued regarding masks by Gov.ie/NPHET
Further information on PPE is available at: https://www.hsa.ie/eng/Topics/Personal_Protective_Equipment_-_PPE/.

Customer Facing Roles

Many of the measures noted above for workers can and should equally be applied for work activity that involves direct customer or visitor contacts.

Employers must:

• eliminate physical interaction between workers and customers as much as is reasonably practicable through revised working arrangements.
• provide hand sanitisers at entry/exit points.
• install physical barriers and clear markings to ensure contact between workers/ customers is kept to a minimum
• implement a cleaning regime to ensure contact points for workers / customers are kept visibly cleaned at all times.
• display the advice on the COVID-19 measures in visible locations to ensure that customers are also adhering to what is required.

Reporting Requirements:

COVID-19 is reportable under the Infectious Diseases (Amendment) Regulations 2020 by a medical practitioner, who becomes aware of or suspects an instance of such disease, not an employer. Such a report should be sent to the Health Protection Surveillance Centre(HPSC): https://www.hpsc.ie/notifiablediseases/

First Aid:

Workers acting as first aid responders should be provided with updated training on infection prevention and control principles when delivering first aid.
Further advice on first aid is available from the Pre-Hospital Emergency Care Council(PHECC):https://www.phecit.ie/PHECC/Publications_and_Resources/Newsletters/Newsletter_Items/2020/PHECC_COVID_19_Advisory_v1.aspx

Mental Health and Wellbeing:

• Employers should put in place support for workers who may be suffering from anxiety or stress. Workers, when they return to work, may have gone through traumatic events such as the serious illness or death of a relative or friend, or be experiencing financial difficulties or problems with their personal relationships.
• Workers who are returning to the workplace after a period of isolation are likely to have concerns about the risk of infection or changes to their job due to the implementation of measures to prevent the spread of COVID-19. Employers should provide workers with information on publicly available sources of support and advice and information about the prevention and control measures taken in the workplace to reduce the risk of infection.
• Employers should ensure workers are made aware of and have access to any Employee Assistance Programmes or
Occupational Health service provided by the Company.
Heating, ventilation, and air conditioning (HVAC):
Switching off air conditioning is not required to manage the risk of COVID-19. For organisations without air conditioning adequate ventilation is encouraged, for example, by opening windows where feasible etc.
Compliance
The Health and Safety Authority will be responsible for governing the compliance of this protocol. Inspectors may exercise their powers to conduct inspections at workplaces to assess compliance, reporting on the key findings and improvements required. Improvement Notices (legal instruction requiring improvement) can also be issued by the Inspector. Where a serious risk is identified, they may decide that it is necessary to shut down the workplace.
The full Return to Work Protocol is available at: https://dbei.gov.ie/en/Publications/Publication-files/Return-to-Work-Safely-Protocol.pdf
To assist with the return to work, employers can find details of existing supports and resources in place for businesses impacted by COVID-19 at:
https://dbei.gov.ie/en/Publications/Supports-for-businesses-COVID-19.html.
Additional advice on dealing with a suspected case is available from the NSAI:
https://www.nsai.ie/images/uploads/general/NSAI-Guidelines-for-COVID-19-2020-04-09.pdf
https://www.hse.ie/eng/services/news/newsfeatures/covid19-updates/partner-resources/hand-hygiene-poster-english.pdf

This update is provided by the MSS HR Support Service
Further details on the update or about our services may be obtained from:
John Barry/Tara Daly/ Hugh Hegarty at: -Tel: 01 8870690 Email: info@mssirl.ie Website: www.mssirl.ie

24th April 2020

EMPLOYER UPDATE

Wage Subsidy Scheme

On the 21st April, Revenue issued some adjustments to the new arrangements that were announced on the 15th April, which we covered in our last Update. We have provided below a summary of these changes.

Excluded Salary

The wage subsidy for those whose pay was in excess of €960 p.w but are now reduced, is now effective from the 16th April 2020 not the 4th May as originally announced. This payment is subject to the tiered arrangements and tapering, as follows;

Where the current gross pay, as reported in the payroll submission, represents a reduction from the ARNWP by:

• less than 20%, no subsidy is payable
• between 20% and 39%, a subsidy of up to €205 is payable
• 40% or more, a subsidy of up to €350 is payable.

The maximum additional payment an employer can make, in order to receive the full subsidy, is the difference between the employees Average Revenue Net Weekly Pay and their maximum weekly wage subsidy.

Eligible Employees 

An employee is not eligible if their gross pay as stated in the payroll submission to revenue exceeds €960 per week. Previously Revenue had referred to this as a Net Pay figure.

Transferred Employees

An employer who has accepted an employee under the TUPE regulations from another employer must notify Revenue of their transfer if they wish to add them to the WSS scheme. a significant negative economic disruption due to Covid-19

Laid off Employees

When an employee is laid off and is in receipt of the Pandemic Unemployment Payment (PUP), they do not have to be terminated by the company.

If an employee who has been placed on lay-off is being returned to work and placed on the Subsidy Scheme, the DEASP will cease the PUP.

Childcare Subsidy Scheme

Details of this new scheme are now available: For more information see

https://www.gov.ie/en/organisation/department-of-children-and-youth-affairs/

Useful links: https://www.revenue.ie/en/employing-people/documents/pmod-topics/guidance-on-operation-of-temporary-covid-wage-subsidy-scheme.pdf

This update is provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

Email: info@mssirl.ie Website: www.mssirl.ie

 

23rd April 2020

EMPLOYER UPDATE 

Annual Leave

We can be sure that, at this time, no one is probably planning their holiday arrangements, due to the current uncertainties and lockdown. However, it is possible that when we are allowed to return to work, we will be heading into the holiday season and employees may at that stage, have accrued a lot of time off if they have not yet taken any leave. At the same time, we hope our employees will be needed to address the uplift in work and getting back on the road again. Hence, the importance of planning how to avoid a holiday crisis.

Statutory Leave Year 

Firstly, the statutory holiday year is April to March, though most companies use January to December as their leave year. This is important, because if a claim is made under the Organisation of Working Time Act 1997, this is the only leave year that a claim can be based on if the claim concerns annual leave, regardless of what the holiday year in the contract states.

Do Employees Accrue Annual Leave during Lay-Off?

Annual leave accrues under the Organisation of Working Time Act based on the number of hours worked by employees, subject to a maximum of four working weeks. Where employees have been placed on lay-off, these employees do not accrue annual leave during the specific weeks that they have been laid off, however it is important to note that if they have worked 1,365 hours in the leave year, then they will still be entitled to their full four weeks annual leave. The question of whether annual leave accrues whilst employees are on the Wage Subsidy Scheme, which is basically de facto Lay-Off, has not been clearly defined by the Government legislation or adjudication as of yet. If an employer takes the position that it does not accrue, they should be mindful that it is possible that this could be deemed unlawful. Accrual of contractual leave in excess of statutory leave whilst in receipt of the WSS payment will accrue unless the contract states otherwise.

Employer Responsibilities

Under this Act the employer is responsible for ensuring employees take their leave. In exercising that responsibility, the employer must take into account the need for the employee to reconcile work needs, family responsibilities and the opportunities for rest and relaxation, even if the employer wishes to nominate when holidays will be taken, which can be done where at least a months’ notice has been given.

At the moment some employers have already organised employees to take leave during this COVID 19 period, to use up entitlements, but the overall number is probably quite small. Yet, if we consider that the normal leave entitlement for full time employees is 4 working weeks plus Public Holidays, and the fact that we only have 8 months left to take them in, (if January to December is your leave year), if and when things pick up we may need all hands to the wheel and holidays could be a nightmare.

So, what can an employer do?

Employers are entitled to nominate when holidays can be taken. To do this the employer is expected to consult the employee or their trade union (if any) at least a month before the date nominated for leave to be taken. This means that the employer can nominate holidays to commence in a months’ time which will allow the employer to organise the workforce, especially if there is going to be a phased return to work. If it is the case that an employer wishes to start using the leave earlier then employees could be asked to come forward, request employees to indicate holiday dates for the rest of the year and advise that if they do not do this the company may have to nominate when they take them or they could be organised by agreement..

What if all annual leave cannot be used up?

If it is the case an employee is unable to use up all the annual leave within the January to December leave year, then it should be remembered that there are still three months left in the Statutory leave year before you are in breach of the Act. In addition to this leave can be carried over to the next leave year provided there is agreement and the leave is taken within the first six months of the new leave year. This gives an employer up to the end of September 2021 to use up any carried over leave and hopefully to also use up current leave as well at that stage.

Why not just pay the outstanding leave?

Employers cannot pay employees for outstanding leave unless the employee is ending their employment with the company, so this is not an option for current employees.

So, what do you do?

• Identify how much leave is currently due to all your employees.
• Identify how much leave the company will need for periods where the company shuts down e.g. Summer shut down, Christmas
• Work out how to spread the balance over the remainder of the leave year
• Request employees to submit their leave requests for 2020 by a specified date so that the company can organise them in a manner fair to all or reflect any established booking practice that may apply in the workplace, around the needs of the business.
• If necessary, nominate when holidays may be taken by giving the appropriate one months’ notice
• If all leave cannot be used up, agree to carry over leave into the next leave year.

Can employees take leave if on the Subsidy Scheme?

Yes. The employee is still at work so this can be done and as the scheme runs to the 25th June, it is likely that employees will be taking leave during this time.

Can employees take leave whilst on the Pandemic Unemployment Payment?

No. An employee cannot receive payment from their employer during this time.

 

This update is provided by the MSS HR Support Service.

 

Further details on the update or about our services may be obtained from:
John Barry/Tara Daly/ Hugh Hegarty at tel: 01 8870690

 

Email: info@mssirl.ie          Website: www.mssirl.ie

 

 

 

20th April 2020

EMPLOYER UPDATE

Planning Ahead 

For businesses and HR Practitioners, with the possibility of light at the end of the lockdown tunnel, now is the time to start forward planning to ensure that, whenever restrictions are lifted and businesses are permitted to reopen, both the business and its employees are ready to resume work. The following are some key areas to focus on to make sure that your business is sufficiently prepared;

Returning Employees to Work

Depending on the Government’s direction, a phased return to work may be necessary for some or all employers to allow the business to get up and running, which means the business may not need everyone back at the same time. In those circumstances, employers will need to decide how to select who will return to work first ensuring they use a fair and objective criterion when doing so.

Employers who have laid staff off, should also keep a watch on the changes that were made to Section 12. Redundancy Payments Act 1967 from 26 March 2020 which prevents claims of redundancy from employees who have been laid-off or kept on short-time due to Covid-19.

This exemption is due to end on the 31^st May 2020, and unless this is extended employers may face redundancy claims from employees who remain on lay-off/short time beyond this date. This may impact decisions for employers on who is to return to work first.

Once selections have been made, employees will need to be contacted to advise them when the period of lay-off or short-time working will cease and of their return to work date, remembering to give as much notice as possible, as employees on lay-off may have been employed elsewhere during the “emergency period”.

Action: Begin to prepare letters for when you need to notify employees, to ensure selection is fair and avoid unnecessary delays.

Health and Safety

Employers must consider the safety, health and welfare of employees returning, in line with their Duty of Care under the Safety, Health and Welfare Act. Guidance from the government should be strictly adhered to. Employers should update risk assessments prior to employees returning to work/returning to normal duties, to ensure that any control measures that are necessary to prevent any possible spread of COVID-19 are in place i.e. rearranging offices, online meetings etc. and that employees are fully briefed and confirm their understanding of them before returning to work. Absence and return to work processes should also be reviewed and confirmation should be sought from employees in advance of their return to protect against any risk of COVID-19.

Action: Update H&S documentation and training material/PPE to incorporate COVID 19 measures.

Collective Redundancies

With a significant downturn in the economy predicted, some employers may unfortunately be faced with the need to implement redundancies or may have identified more efficient ways of working, resulting in fewer employees needed, within their organisations. Employers should be careful to seek advice in advance of any such action, however. Fair procedures must be applied at all stages where redundancies are being considered. Depending on the number of roles being declared redundant and the size of the workforce, Collective Redundancy legislation may apply, entailing more specific notice and consultation periods. Failure to adhere to fair procedures, may result in claims under the Unfair Dismissals Act 1978.

Action: Review staffing levels and work practices to identify potential efficiencies.

Annual Leave

Many employees will be returning to work with an accumulation of annual leave, which employers may struggle to allow them to take within the leave year. In this regard, employers may want to consider relaxing their annual leave policies and allowing for a carryover of leave into the next leave year. It should be noted that the annual leave year for the purpose of the Organisation of Working Time Act 1997 is from the 1st April to the 31st March. Under this legislation, annual leave can be carried forward into the first six months of the following leave year (1st April -30th September) with the agreement of the employee or if contractually provided for.

Where agreement is reached this should be recorded. Employers should ensure they have a strategy in place for managing the excess annual leave which employees will have accrued.

Employers should ensure that management are fully briefed on the details of their employee’s remaining annual leave for this year so that everyone is clear on where they stand and can plan accordingly.

Should an employer wish to specify when employees may take their leave, then there should be consultation on this at least one month before the leave date and should take into account proper rest and recreation for the employee and their family.

Action: Review outstanding leave entitlements and plan how they are to be used up without affecting the business.

Compassionate/ Bereavement Leave

As a result of social distancing measures, funeral masses are presently limited to family members only during the emergency period. Memorial services may take place when it is over. Employers should expect to receive requests for time off for attendance at these and so should consider their position. Although not legally required, many employers operate policies on bereavement/compassionate leave.

Action: Review these policies and decide whether to adjust them temporarily to facilitate leave for these unique circumstances or require annual leave/unpaid leave should be taken. Employers that do not have expressed Bereavement/compassionate leave policies should also prepare for what their position on such ceremonies will be.

Working From Home

This pandemic has forced employers to implement flexible working arrangements which would not normally apply and have trusted their employees to carry out the work which they were employed to do, from their home. Employers should be prepared for requests from some of their employees to continue with such arrangements. Whatever the preference of your business, you should start to decide now what your company’s position is. What would be the cost or operational implications of continuing? If it is something you wish to permit, decide fairly on what basis, and ensure that you document any agreement and the conditions applicable.

Action: Create a Home Working policy to cover H&S aspects and applicable circumstances.

Part Time Work Request

Employees who have been working reduced hours or not working at all may seek to avail of part time hours on a permanent basis. Employers should consider what their position is for such requests. Although not obliged to facilitate such an arrangement, the ‘Code of Practice on Access of Part Time Working’ provides that employers should consider requests for Part-Time Work and take account of all factors both relevant to the organisation and personal to the applicant before making a decision. Written replies to the employees detailing these reasons should be given. These requests should be considered on a case by case basis, but employers can start planning now for potential requests and the operational feasibility of them for roles within their business. Where part time work arrangements are agreed, the conditions for same should be clearly laid out and detailed in a signed appendix to the employees Terms and Conditions.

Actions: Prepare a Part Time workers policy

Probation 

Some employees may have been employed on an initial probation period prior to being placed on lay-off/short time. Employers should check whether their contracts provide for the extension of the probation period to take into account any periods of absence, in which case they should write to employees to confirm this extension so that there is no uncertainty. However, in any case they should be careful not to extend the probation beyond a period of 11 months, as employees will benefit from full coverage under the Unfair Dismissal Act once they have accrued 12 months service.

Action: Review all new employee dates and issue update letters to all probationers.

Communication

The pandemic has had a big impact on the way in which we all communicate including employers resorting to online platforms for meetings and this has meant that businesses have honed their IT communications skills. Employers may want to consider whether these new approaches would be beneficial and could be incorporated into the workplace in the future. As social distancing measures are likely to be still in place on return, if these measures were necessary to ensure that appropriate distances are maintained, then employers may be required to continue with them initially. In doing so employers will need to review any GDPR implications to this.

Action: Update/introduce IT policies and review GDPR implications.

Contract Review

Some employers may have identified gaps in their employment contracts, in particular in relation to lay-off and short-time working clauses. Therefore, it may be a good time to review employment contracts/Employee Handbooks now to include these provisions.

Action: Review Terms and conditions

Wage Subsidy Scheme/ Welfare Scheme

Revenue may need to be contacted and payroll processes may need to be adjusted as the Wage Subsidy schemes come to an end. (Currently scheduled for the 25th June) Employers should consider now what steps will be involved, liaising closely with payroll companies and the information available on www.gov.ie and ensure that they can do so as quickly as possible to avoid unnecessary delays. Laid off employees in receipt of the Pandemic Unemployment Benefit should be reminded to contact the revenue to advise that they are now returning to work. Those operating outside of the Wage Subsidy Scheme with employees on lay-off may take longer to get back up and running.

Action: Update Payroll and prepare letters to employees advising them of any changes in pay format and potential income tax liabilities.

Employment Permits

If an employer has any employees who are employed on a Work Permit, they will need to contact the department to confirm when the employee will be returning to work.

Whilst permits due to expire have been temporarily extended, Employers should also check to ensure that any non-EU national visas are up to date and that reminders are sent to employees who have visas which are due to expire.

Action: Review all work permits currently in place and write to relevant employees on their status.

Before you make any changes to what you have done in the past, we would recommend that you seek advice to ensure that you are not exposing your business to claims from your employees.

This update is provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

Email: info@mssirl.ie Website: www.mssirl.ie 

 

 

17th April 2020

EMPLOYER UPDATE

Temporary COVID-19 Wage Subsidy Scheme

Effective from 4th May 2020 

The Wage Subsidy Scheme came into operation on the 26th March 2020 and provided financial support to Irish Companies affected by the Covid-19 crisis who, otherwise, may be unable to pay employees their wages arising from the COVID 19 crisis, and allows employers to continue to pay employees and to re-employ employees who may have been laid off. This scheme has again been updated on the 15th April and these updates come into effect on the 4th May 2020 and run to the 26th June 2020. For April pay runs please refer top our Update of the 6th April 2020.

Employers must keep employees on the payroll throughout the COVID-19 pandemic so that employers retain their links with employees for when business picks up after the crisis and are encouraged to top up the subsidy, if they can, for the period of the scheme. A revised summary of the operation of the scheme is as follows: -

New Scheme Details 

• Post 4th May 2020 the subsidy will refund employers the amount as follows: -

o 85% of net pay to a maximum of €350 per qualifying employee, where the employee’s normal net pay was €412 p.w. or less

o 70% of net pay to a maximum of €350 per employee where the normal net pay was between €412p.w. and €500 p.w

o 70% of net pay to a maximum of €410 per employees where the normal net pay was between €501p.w. and €586 p.w

o 70% of net pay for employees with previous net pay between €586 - €960 per week subject to a maximum that is based on a tiered approach which varies the maximum depending on the amount paid by the employer and the level of any reduction in pay that has been imposed on that employee as follows:

Gross amount paid by the Employer                         Subsidy Max

Up to 60% of normal net                                                €350

Between 60%-80% of net                                              €205

• A tapering of the subsidy will apply to all cases where the gross pay paid by the employer and the subsidy exceed the previous normal net weekly pay. This will be calculated by subtracting the amount paid by the employer from the previous average net weekly pay. This is to ensure that no employee would be better off under the scheme.
• The subsidy will also now support employees where the average net pre-COVID-19 salary was greater than €76,000, (gross) and their gross post-Covid salary has since fallen below €76,000. The tiered arrangement for gross incomes in excess of €38,000 (€586) will apply in such circumstances.
• Employers are requested to top up, if possible, to no more than the normal take home (net) pay, but must pay a top up of at least € .01
• Income tax, PRSI, LPT and USC will not be applied to the subsidy at the time of payment. This will be balanced at year end.
• Employee PRSI will not apply to the subsidy or top up payments.
• Employers PRSI will not apply to the subsidy and will be reduced from 11.5% to 0.5% on the top up payment. (Class J9)
• All other conditions of the scheme continue to apply as set out below.

Who does the scheme apply to?

The Scheme is open to businesses, excluding the public service and non-commercial semi-state sector, who are being adversely impacted by the pandemic and they: -

• retain staff on payroll or re-employ laid off staff, whether they are on reduced hours and/or reduced pay.

The employer meets the conditions set out below and subject to the levels of pay given to the employees.

Scheme Qualification 

Employers must: 

• be experiencing a significant negative economic disruption due to Covid-19
• Applications will be self-assessed – employers must presume this will be checked at some date with potential serious consequences for any unsustainable claim
• be able to demonstrate, to the satisfaction of Revenue, an expected minimum of a 25% decline in turnover in Q2
• be unable to meet normal wages and normal outputs fully.

Employees must:

• have been on the employer’s payroll as at 29 February 2020, and
• for whom a payroll submission has already been made to Revenue in the period from 1 February 2020 to 15 March 2020.
• be employees who were laid off after 29th February and are taken back onto the payroll.
• If an employee has more than one job the employer applies 70% of what they are paying the employee.

Publication: 

The names of employers operating this scheme will be published on Revenue’s website in due course, after the scheme has expired.

Employer Registration: 

Any employer, already registered with Revenue for the Employer COVID-19 Refund Scheme, is not required to take any further action. The employer may make payroll submissions from 26 March 2020 under the subsidy scheme arrangements on the same basis as they were doing for the Employer Refund Scheme.

Employers wishing to register for the scheme can apply to Revenue by logging on to ROS myEnquiries and select the category ‘Covid-19: Temporary Wage Subsidy’.

• Read the “Covid-19: Temporary Wage Subsidy Self-Declaration” and press the ‘Submit’ button.
• Ensure bank account details on Revenue record are correct. These can be checked in ROS and in ‘Manage bank accounts’, ‘Manage EFT’. Enter the refund bank account that the refund is to be made to.

Operating the scheme from Thursday 26th March 2020 

Transitional Phase - The employer runs the payroll as normal, entering the following details for each relevant employee under the Scheme:

• PRSI Class set to J9.
• A non-taxable amount equal to 70% of the employee’s net take home pay subject to the €410/ €350 maximum.
• If an employer is not making any payment to the employee, they should include a pay amount of €0.01 in Gross Pay.
• If an employer is making additional wage payments they should include this amount in the Gross Pay.
• It is important that employers do not include the Temporary Wage Subsidy payment in Gross Pay.
• The additional payment, which cannot be re-grossed, are liable to income tax and USC
• Net pay must not exceed average weekly net pay

The payroll submission must include pay frequency and period number and will not be processed for refund until 4 days before the pay date.

Normal Weekly Net Pay

This is the Average Net weekly pay for January and February 2020 based on revenue returns by 15th March 2020.

• Take the employee’s “Gross pay” and from it subtract the “Income Tax Paid”, the “USC Paid” and the “Employee PRSI Paid”.
• Total this figure for each pay date in Jan and Feb 2020 and divide this by the number of insurable weeks (capped at 9) for the period.
• This gives the employee’s average pay that is to be used for the subsidy amount
• Pension and other voluntary deductions can only be made from the “top-up” payment provided funds are sufficient.

The payment of the Temporary Wage Subsidy and any additional income paid by the employer may result in the refund of Income Tax or USC already paid by the employee. Any Income Tax and USC refunds that arise as a result of the application of tax credits and rate bands can be repaid by the employer and Revenue will also refund this amount to the employer.

Employers must not operate this scheme for any employee who is making a claim for duplicate support (e.g. Pandemic Unemployment Payment) from the DEASP.

Where an employee is not covered by this scheme they may still be able to avail of the Covid 19 Pandemic Unemployment Payment or Short-time Work Support/Job Seekers benefit.

Please note Penalties will apply to any abuse of the Subsidy Scheme by self-declaring incorrectly, not providing funds to employees or non-adherence to Revenue, and any other relevant, guidelines.

This update is for guidance only and is

provided by the MSS HR Support Service

 

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

 

Email: info@mssirl.ie Website: www.mssirl.ie

 

Useful links for more information:-

https://revenue.ie/en/employing-people/documents/pmod-topics/guidance-on-operation-of-temporary-covid-wage-subsidy-scheme.pdf

https://revenue.ie/en/corporate/communications/documents/guidance-on-employer-eligibility-and-supporting-proofs.pdf

 

 

 

 

6th April 2020

EMPLOYER UPDATE

Temporary COVID-19 Wage Subsidy Scheme

 

The Emergency Measures In The Public Interest (COVID 19) Act 2020 came into operation on the 26th March 2020. These measures provide financial support to Irish Companies and their workers affected by the Covid-19 crisis who, otherwise, may be unable to pay employees their wages due to the lack of funds arising from the COVID 19 crisis and allows employers to continue to pay employees and to re-employ employees who may have been laid off. The scheme runs for 12 weeks from 26 March 2020.

Employers must keep employees on the payroll throughout the COVID-19 pandemic so that employers retain their links with employees for when business picks up after the crisis.

Employers are encouraged to maintain a significant, or 100%, net income, for the period of the scheme. A summary of the operation of the scheme is as follows: -

Scheme Details

• Employers will not apply the €350 payment under the COVID-19 Unemployment Payment Refund Scheme anymore.
• The subsidy will refund employers up to a maximum of:- o €410 per qualifying employee, where the employees normal net pay is €586 p.w. or less
• €350 per employee where the normal net pay is between €587p.w. and €960 p.w
• The scheme will not apply if net pay is in excess of €960 p.w.
• The reimbursement will, in general, be made within two working days after receipt of the payroll submission.

• Employers are requested to top up, if possible, to no more than the normal take home (net) pay, but must pay a top up of at least € .01.
• From no later than the 20th April, the subsidy payment will be based on 70% of the weekly average take home pay for each employee up to the relevant maximum.
• Income tax, PRSI, LPT and USC will not be applied to the subsidy at the time of payment. This will be balanced at year end.
• Employee PRSI will not apply to the subsidy or top up payments.
• Employers PRSI will not apply to the subsidy and will be reduced from 11.5% to 0.5% on the top up payment. (Class J9)

 

Who does the scheme apply to?

The Scheme is open to businesses, excluding the public service and non-commercial semi-state sector, who are being adversely impacted by the pandemic and they:-

• retain staff on payroll or re-employ laid off staff, whether they are on reduced hours and/or reduced pay.
• The employer meets the conditions set out below and subject to the levels of pay given to the employees.

Scheme Qualification

Employers must:

• be experiencing a significant negative economic disruption due to Covid-19
• Applications will be self-assessed – employers must presume this will be checked at some date with potential serious consequences for any unsustainable claim
• be able to demonstrate, to the satisfaction of Revenue, an expected minimum of a 25% decline in turnover in Q2
• be unable to meet normal wages and normal outputs fully.

Employees must:

• have been on the employer’s payroll as at 29 February 2020, and
• for whom a payroll submission has already been made to Revenue in the period from 1 February 2020 to 15 March 2020.
• be employees who were laid off after 29th February and are taken back onto the payroll.
• If an employee has more than one job the employer applies 70% of what they are paying the employee.

Publication: 

The names of employers operating this scheme will be published on Revenue’s website in due course, after the scheme has expired.

Employer Registration: 

Any employer, already registered with Revenue for the Employer COVID-19 Refund Scheme, is not required to take any further action. The employer may make payroll submissions from 26 March 2020 under the subsidy scheme arrangements on the same basis as they were doing for the Employer Refund Scheme.

Employers, or their agents, wishing to register for the scheme can apply to Revenue by carrying out the following steps:

• Log on to ROS myEnquiries and select the category ‘Covid-19: Temporary Wage Subsidy’.
• Read the “Covid-19: Temporary Wage Subsidy Self-Declaration” and press the ‘Submit’ button.
• Ensure bank account details on Revenue record are correct. These can be checked in ROS and in ‘Manage bank accounts’, ‘Manage EFT’. Enter the refund bank account that the refund is to be made to.

Operating the scheme from Thursday 26th March 2020

Transitional Phase - The employer runs the payroll as normal, entering the following details for each relevant employee under the Scheme:

• PRSI Class set to J9.
• A non-taxable amount equal to 70% of the employee’s net take home pay subject to the €410/ €350 maximum.
• If an employer is not making any payment to the employee, they should include a pay amount of €0.01 in Gross Pay.
• If an employer is making additional wage payments they should include this amount in the Gross Pay.

• It is important that employers do not include the Temporary Wage Subsidy payment in Gross Pay.
• The additional payment, which cannot be re-grossed, are liable to income tax and USC
• Net pay must not exceed previous normal net pay
• The payroll submission must include pay frequency and period number.

Normal Weekly Net Pay

This is the Average Net weekly pay for January and February 2020 based on revenue returns by 15th March 2020.

• Take the employee’s “Gross pay” and from it subtract the “Income Tax Paid”, the “USC Paid” and the “Employee PRSI Paid”.
• Total this figure for each pay date in Jan and Feb 2020 and divide this by the number of insurable weeks (capped at 9) for the period.
• This gives the employee’s average pay that is to be used for the subsidy amount
• Pension and other voluntary deductions can only be made from the “top-up” payment provided funds are sufficient.

The payment of the Temporary Wage Subsidy and any additional income paid by the employer may result in the refund of Income Tax or USC already paid by the employee. Any Income Tax and USC refunds that arise as a result of the application of tax credits and rate bands can be repaid by the employer and Revenue will also refund this amount to the employer.

Employers must not operate this scheme for any employee who is making a claim for duplicate support (e.g. Pandemic Unemployment Payment) from the DEASP.

Where an employee is not covered by this scheme they may still be able to avail of the Covid 19 Pandemic Unemployment Payment or Short-time Work Support/Job Seekers benefit.

Please note Penalties will apply to any abuse of the Subsidy Scheme by self-declaring incorrectly, not providing funds to employees or non-adherence to Revenue, and any other relevant, guidelines.

 

This update is for guidance only and is

provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

Email: info@mssirl.ie Website: www.mssirl.ie

 

Useful links for more information:-

 

https://revenue.ie/en/employing-people/documents/pmod-topics/guidance-on-operation-of-temporary-covid-wage-subsidy-scheme.pdf

 

https://revenue.ie/en/corporate/communications/documents/guidance-on-employer-eligibility-and-supporting-proofs.pdf

 

 

 

 

27th March 2020

EMPLOYER UPDATE

 Temporary COVID-19 Wage Subsidy Scheme

The Dail approved the Emergency Measures In The Public Interest (COVID 19) Bill 2020 on the 26th March, which is the effective date of the new Wage Subsidy Scheme. These measures are to provide financial support to Irish Companies and workers affected by the Covid-19 crisis to businesses who otherwise are unable to pay employees their wages due to the lack of funds arising from the COVID 19 crisis.

The scheme will support employers who are affected by the pandemic by providing financial support to allow employees to continue to be paid as employees and to re-employ employees who may have been laid off. The scheme will run for 12 weeks from 26 March 2020.

Employers must keep employees on the payroll throughout the COVID-19 pandemic so that employers retain their links with employees for when business picks up after the crisis.

Employers are encouraged to make their best efforts to maintain a significant, or 100%, net income, for the period of the scheme. A summary of the operation of the scheme is as follows: -

Scheme Details

· Employers will not apply the €350 payment under the COVID-19 Unemployment Payment Refund Scheme anymore.

· The subsidy will refund employers up to a maximum of :-

o €410 per qualifying employee, where the employees normal net pay is €586 p.w. or less

o €350 per employee where the normal net pay is between €586 p.w. and €960 p.w

· The scheme will not apply if net pay is in excess of €960 p.w.

· The reimbursement will, in general, be made within two working days after receipt of the payroll submission.

· Employers are requested to top up, if possible, to no more than the normal take home (net) pay, but must pay a top up of at least € .01

· From no later than the 20th April, the subsidy payment will be based on 70% of the weekly average take home pay for each employee up to the relevant maximum.

· Income tax, PRSI, LPT and USC will not be applied to the subsidy payment. (This will be balanced at year end.)

· Employee PRSI will not apply to the subsidy or top up payments.

· Employers PRSI will not apply to the subsidy and will be reduced from 11.5% to 0.5% on the top up payment. (Class J9)

Who does the scheme apply to?

The Scheme is open to businesses, excluding the public service and non-commercial semi-state sector, who are being adversely impacted by the pandemic and they:-

· retain staff on payroll or re-employ laid off staff, whether they are on reduced hours and/or reduced pay.

· The employer meets the conditions set out below and subject to the levels of pay given to the employees.

Scheme Qualification

Employers must:

· be experiencing a significant negative economic disruption due to Covid-19

· Applications will be self-assessed – employers must presume this will be checked at some date with potential serious consequences for any unsustainable claim

· be able to demonstrate, to the satisfaction of Revenue, an expected minimum of a 25% decline in turnover in Q2

· be unable to meet normal wages and normal outputs fully.

Employees must:

· have been on the employer’s payroll as at 29 February 2020, and

· for whom a payroll submission has already been made to Revenue in the period from 1 February 2020 to 15 March 2020.

· be employees who were laid off after 29th February and are taken back onto the payroll.

Publication 

The names of employers operating this scheme will be published on Revenue’s website in due course, after the scheme has expired.

Employer Registration

Any employer, already registered with Revenue for the Employer COVID-19 Refund Scheme, is not required to take any further action. The employer may make payroll submissions from 26 March 2020 under the subsidy scheme arrangements on the same basis as they were doing for the Employer Refund Scheme.

Employers, or their agents, wishing to register for the scheme can apply to Revenue by carrying out the following steps:

· Log on to ROS myEnquiries and select the category ‘Covid-19: Temporary Wage Subsidy’.

· Read the “Covid-19: Temporary Wage Subsidy Self-Declaration” and press the ‘Submit’ button.

· Ensure bank account details on Revenue record are correct. These can be checked in ROS and in ‘Manage bank accounts’, ‘Manage EFT’. Enter the refund bank account that the refund is to be made to.

Operating the scheme from Thursday 26th March 2020

Transitional Phase - The employer runs the payroll as normal, entering the following details for each relevant employee under the Scheme:

· PRSI Class set to J9.

· A non-taxable amount equal to 70% of the employee’s net take home pay subject to the €410/ €350 maximum.

· If an employer is not making any payment to the employee, they should include a pay amount of €0.01 in Gross Pay.

· If an employer is making additional wage payments they should include this amount in the Gross Pay.

· It is important that employers do not include the Temporary Wage Subsidy payment in Gross Pay.

· Net pay must not exceed previous normal pay

· The payroll submission must include pay frequency and period number.

Normal Weekly Net Pay

This is the Average Net weekly pay for January and February 2020 based on revenue returns by 15th March 2020.

· Take the employee’s “Gross pay” and from it subtract the “Income Tax Paid”, the “USC Paid” and the “Employee PRSI Paid”.

· Total this figure for each pay date in Jan and Feb 2020 and divide this by the number of insurable weeks (capped at 9) for the period.

· This gives the employee’s average pay that is to be used for the subsidy amount

Income tax, USC, LPT, if applicable, and PRSI are not deducted from the Temporary Wage Subsidy.

The payment of the Temporary Wage Subsidy and any additional income paid by the employer may result in the refund of Income Tax or USC already paid by the employee. Any Income Tax and USC refunds that arise as a result of the application of tax credits and rate bands can be repaid by the employer and Revenue will also refund this amount to the employer.

Employers must not operate this scheme for any employee who is making a claim for duplicate support (e.g. Pandemic Unemployment Payment) from the DEASP.

Where an employee is not covered by this scheme, they may still be able to avail of the Covid-19 Pandemic Unemployment Payment or Short-time Work Support/Job Seekers Benefit.

Please note Penalties will apply to any abuse of the Subsidy Scheme by self-declaring incorrectly, not providing funds to employees or non-adherence to Revenue, and any other relevant, guidelines.

This update is for guidance only and is provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

Email: info@mssirl.ie Website: www.mssirl.ie 

 

Useful links for more information:-

https://revenue.ie/en/employing-people/documents/pmod-topics/guidance-on-operation-of-temporary-covid-wage-subsidy-scheme.pdf

https://revenue.ie/en/corporate/communications/documents/guidance-on-employer-eligibility-and-supporting-proofs.pdf

27th March 2020

EMPLOYER UPDATE 

Emergency Measures in The Public Interest (COVID 19) Bill 2020

 

Compulsory Redundancy arising from Lay-Off/ Short Time Working 

The Dail approved the Emergency Measures in The Public Interest (COVID 19) Bill 2020 on the 26th March, which introduced, amongst other emergency pieces of legislation, the new Wage Subsidy Scheme. These measures were to provide support to Irish Companies and workers affected by the Covid-19 crisis.

 

Redundancy 

This Act also temporarily removes a persons’ right to request to be declared redundant where they have been laid-off/ put on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive.

The changes mean this right, which is contained in Section 12. Redundancy Payments Act 1967, will not have effect during the emergency period (3 months from 26 March 2020) in respect of an employee who has been laid-off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

It should be noted that the rules concerning fair selection for lay-off, redundancy or short time working remain unchanged and an employer should ensure it is exercised correctly to avoid any claims.

This update is for guidance only and is provided by the MSS HR Support Service.

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at tel: 01 8870690

Email: info@mssirl.ie          Website: www.mssirl.ie

Penalties will apply to any abuse of the Subsidy Scheme by self-declaring incorrectly, not providing funds to employees or non-adherence to Revenue, and any other relevant, guidelines.

We will endeavour to provide you with any additional, updated information, as it becomes available.

This update is provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at Tel: 01 8870690

Email: info@mssirl.ie Website: www.mssirl.ie

March 2020

EMPLOYER UPDATE: COVID-19 (Coronavirus)

With the international pandemic spread of the coronavirus, Covid-19, and the recent unprecedented restrictions imposed by the Government of Ireland, businesses are experiencing a high degree of economic uncertainty.

For this reason, we have put together a list of the ‘Frequently Asked Questions’ which are at the forefront of employers minds in the present climate. This will hopefully help employers when considering the best approach for their businesses and employees.

We have also put together the below protocol/letters, which will hopefully help guide you through this period of uncertainty;

• COVID- 19 Protocol for Employees
• SAMPLE Protective Notice Letter
• SAMPLE Notice of Lay-Off/Short-Time Working Letter

This update is provided by the MSS HR Support Service

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/ Hugh Hegarty at tel: 01 8870690

Email: info@mssirl.ie 

Website: www.mssirl.ie

 

 

 

 

Who is an Experienced Adult Worker?

This update is provided by the MSS HR Support Service.

Further details on the update or about our services may be obtained from:
John Barry/Tara Daly/ Hugh Hegarty at tel: 01 8870690 

Email: info@mssirl.ie 
Website: www.mssirl.ie

Further details on the update or about our services may be obtained from:
John Barry/Tara Daly/ Hugh Hegarty at tel: 01 8870690 

Email: info@mssirl.ie 
Website: www.mssirl.ie

This update is provided by the MSS HR Support Service.

Further details on the update or about our services may be obtained from:

John Barry/Tara Daly/Hugh Hegarty at Tel: 01 8870690 

Email: info@mssirl.ie 

Website: www.mssirl.ie

 

- Heather Humphreys

The spouses and partners of highly-skilled workers coming to Ireland from outside the EEA will now have immediate and full access to the Irish labour market without the need for an employment permit.

The new "streamlined" process was jointly announced today by Business Minister Heather Humphreys and Justice Minister Charlie Flanagan.

It affects the partners and spouses of those holding Critical Skills Employment Permits, which are designed to attract highly-skilled workers to fill high-demand vacancies where skills are not readily available in the Irish/EEA labour market, particularly in the IT sector.

One of the primary benefits of the Critical Skills Employment Permit is the option for the permit holder to apply for immediate family reunification, as well as the option for the dependent, spouse or partner to apply for a specific employment permit should they choose to work and if they find a job.

However, Ms Humphreys said the existing process was "administratively cumbersome and, in many cases, has acted as a barrier to these people securing work here", prompting inter-Departmental work to simplify it.

Mr Flanagan added: "While this scheme is primarily driven by the Department of Business, Enterprise and Innovation, it is also a prime example of proactive and positive engagement between two departments.

"Because of this work, the non-EEA spouses and partners of critical skills employment permit holders will no longer need an employment permit from the Department of Business, Enterprise and Innovation to work in Ireland.

"On arrival in the State, eligible spouses and de facto partners will be granted an immigration permission with automatic right to work. This will enable critical skills permit holders and their families to quickly become established and assist in their integration in society."

 

For further details on this Update or about all our services please contact 

 Tel: 01 8870690  -  Email:  info@mssirl.ie

 

A full list of our Employer Updates can be downloaded from our website.

 

 

 

The Employment (Miscellaneous Provisions) Act comes into force on the 1^st March 2019. The Acts main provisions make significant amendments to both the Terms of Employment (Information) Act 1994 and Organisation of Working Time Act 1997 by introducing minimum working hours, introducing employees having regularly worked hours incorporated into minimum working hours and requiring Employers to issue a mini-statement of terms within 5 days of someone commencing work. 

Mini-statement of Terms:

An employer must, within 5 days of starting employment, give a new employee a statement of “core terms” in writing setting out the following:

1.  the names of the employer and employee
2. the address of the employer
3. in the case of a temporary contract, the expected duration of the contract and in the case of Fixed Terms work the date the contract expires
4. the rate or method of calculation of the employee pay and the pay reference period
5. the number of hours the employer reasonably expects the employee to work

This statement does not replace the need to issue a full statement of terms of employment within the first 2 months of employment. However, if the full statement is issued within the 5 day period there is no need to issue the mini-statement.

It will be an offence carrying a potential fine of up to €5,000/12 months imprisonment for an employer who fails to provide the core terms within one month or who deliberately misrepresents the required information given to the employee. The employer is allowed the defence that they exercised due diligence and took reasonable precautions to ensure compliance with the Act.

Zero Hour Contracts:

The Act amends the provisions of the Organisation of Working Time Act in relation to requiring that there must be a minimum number of hours on any contract unless it is work of a casual nature, an emergency or short-term relief.

Working Hours:

The Act creates Banded hours, with 8 bands ranging as follows:-

A    3 – 6 hrs           E   21 - 26 hrs

B    6  - 11 hrs         F  26  - 31 hrs

C    11- 16 hrs         G  31  - 36 hrs

D    16 - 21 hrs        H  36 hrs and over

Employees will have recourse to request the band which reflects the average number of hours worked per week over a 12-month period, with recourse to the Workplace Relations if not applied on request.

The employer has 4 weeks in which to comply with a valid request. Any employee placed on a new band is entitled to work that for at least the following 12 months.

Am employer may refuse to comply with such a request where there is no evidence to support the claim, there were exceptional circumstances applying, there is a significant change in business circumstances or the hours worked were due to a temporary situation only and that has ceased.

The legislation will still allow employees/ers to operate on an “mutually available” basis whereby if an employee is not required to be available and they may refuse the work, then the provisions relating to minimum payments if work is not provided will not apply.

Reduction of Hours:

There is no statutory provision included to reduce the hours so an employer can only avail of their existing rights to reduce hours, such as short-time working /lay off, if provided for in the T&Cs and these usually apply to short term arrangements only.

Penalisation:

An Employer who is found to have penalised an employee because they invoked a right under the Act will face a potential award of up to 2 years remuneration. Examples of penalisation would be changing their duties, suspension, lay off or dismissal demotion.

Disputes:

An employee may refer a dispute to adjudication in the Workplace Relations Commission, which may be appealed to the Labour Court.

We would recommend that you review your current terms and conditions documents and update them to reflect the changes in the law.

This update is provided by the MSS HR Support Service 

For further details on this Update or about all our services please contact 

 Tel: 01 8870690  -  Email:  info@mssirl.ie

 

 

 

This update is provided by the MSS HR Support Service 

For further details on this Update or about all our services please contact 

 Tel: 01 8870690  -  Email:  info@mssirl.ie

 

 

                        

This update is provided by the MSS HR Support Service

For further details on this Update or about all our services please contact

Tel: 01 8870690-Email:info@mssirl.ie

 

Force Majeure Leave: Employees may take limited leave, WITH PAY, in the case of an injury to or an illness of a family member or a person in a relationship of domestic dependency, including same sex partners, and the presence of the Employee must be required where such a person is. Maximum leave is 3 days in 12 months / 5 days in 36 consecutive months. Employees availing of this leave should be requested to complete a form stating the reasons, as soon as is reasonably practicable after the leave has been taken.

Return to Work: Employees are entitled to return to the same or suitable alternative work on terms and conditions no less favorable than before. However, the Amended Legislation now places an obligation on employers to consider employee requests for changes to their working hours and/or patterns for a set period on return from Parental Leave

Employers must consider the needs of both the business and the employee when considering such requests.

Where the request is not granted, the employer must respond in writing to the employee as soon as possible, but no later than within 4 weeks after receipt to the request, advising that the request has been refused.

Where such changes are agreed, the employer must draft an Agreement setting out the following;

• The changes to the employee’s working hours and/ or pattern.
• The commencement and duration of the agreed set period.

The agreement should then be signed by both the employee and the employer and a copy should be retained by both.

Before signing an agreement, an employee may decide in writing to revoke a request for such changes.

Disputes: Where there is a dispute in relation to Parental Leave the matter may be referred to a Rights Commissioner whose decision may be appealed to the Employment Appeals Tribunal, and on to the High Court on a point of law.

 

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 -

• Expiry of a specified period between a specified date
• Expiry of a specified purpose
• The achievement of a specific event

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 -

1. Employed by the same associated employer (subject to 1,2,3 below)
2. Is an employee specified in a collective agreement which applies to the contract employee
3. Employed in the same industry or sector (subject to 1,2,3 below)

In the case of a) and c) above one of the conditions must apply.

1. Both employees perform the same work under similar conditions or are interchangeable.
2. Work is of the same or similar nature with any differences being insignificant
3. Work is equal to or greater to a comparable permanent employee.

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.

Employer Obligations

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.

Disputes

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;

1. Declare the complaint was or was not well founded
2. Require the employer to comply with the act
3. Require the employer to reinstate or reengage the employee, (including on a contract of indefinite duration)
4. Order compensation not exceeding two years remuneration.

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:-

• incorporate this change into their normal practice,
• ensure that any contracts, practices and policies reflect these additional entitlements.
• ensure that medical certificates are received for all relevant leave periods according to Company T&Cs
• accrue the cost of the leave earned in accounts going forward
• Include holiday pay where a long term sick person’s employment ends with the company

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 25^th 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.

Purpose

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.

Key Changes

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.

Data Request:

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.

Data Breaches:

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.

Data Protection Officers:

Some companies will be required to appoint a Data Protection Officer. Such organisations include:

• Public authorities
• Organisations whose activities involve regular and systematic monitoring of data subjects on a large scale
• Organisations who process what is known as a sensitive personal data on a large scale.

Recommendations

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:

• Advise all employees that you are collecting data about them, why you do this, who  your Data Controller is and who may have access to it.
• Obtain and process information fairly
• Keep it only for one or more specified, explicit and lawful purposes
• Use and disclose it only in ways compatible with these purposes
• Keep it safe and secure
• Keep it accurate, complete and up-to-date
• Ensure that it is adequate, relevant and not excessive
• Retain it for no longer than is necessary for the purpose or purpose
• Give a copy of his/her personal data to that individual on request

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;

• Review their existing Data Protection policies to ensure that they reflect the new changes.
• Ensure to report any breach that is likely to bring harm to an individual, as well as informing the concerned individuals.
• Consider whether their company are obliged to appoint a Data Protection Officer.

Finally, here are a few questions to bring you one step closer to being compliant:

• What data do you hold?
• Why are you holding it?
• How long will you retain it?
• Is it safe?

 

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 hr@mssirl.ie.

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 hr@mssirl.ie.