- 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.