From Recruitment to Retirement Employment

Law Workshop

Mark Fielding.

CEO

ISME

Subjects to be covered:

• Recruitment Policies

• Contracts and Terms and Conditions

• Contracts ‘of’ and ‘for’ service.

• Changing an employee’s Terms and Conditions

• Discipline and Grievance procedures

• Preparing for the retirement of staff

• New Employment supports from Government

From Recruitment to Retirement Employment Law Workshop

Do not discriminate on the 9 grounds when:

• Selecting people for interview (note on cv why not selected)

• Using discriminatory vetting procedures

• Asking discriminatory questions

• Offering terms & conditions, eg. male & female

Recruitment • Discrimination:- Employment Equality Act 1998-2004 – Sex – Marital Status – Race – Religious Belief – Age – Disability – Membership of Travelling Community – Family Status

– Sexual Orientation

RECRUITMENT: • Determine what you need – Sales people (a.k.a.

Business Development), Supervisory staff, back office; Technology etc, etc

• Draft or revise an existing job description

• Prepare an advertisement for both internal and external release (advertise internally first)

• Choose a recruitment vehicle (Agency, Website, Media) and set deadline for applications

• Set time aside to review received applications.

SELECTION AND INTERVIEW:

• Shortlist initial candidates for interview based

on job description essential requirements.

• Write to those shortlisted and those rejected.

• Prepare an interview score sheet so each

candidate can be fairly assessed and avoid

DISCRIMINATION!! Try to have a male and

female do interviews.

• Prepare questions to be asked at the interview.

Conduct interviews over, say 1 week.

Conduct second round interviews if

necessary.

Compare scores to reach final decision.

Keep interview notes / scoring sheet.

Keep records for at least 12 months.

Write to unsuccessful candidates.(after

successful candidate accepts and signs).

MAKING THE OFFER OF EMPLOYMENT • Write to successful candidate enclosing a

contract and terms and conditions (2 copies)

• Offer should be subject to references and any other specific requirements (Garda vetting etc)

• The offer letter should include pay

details and date / time for the

employee to report for their first

day / orientation at work location.

Questions ?

The Independent Business Organisation

CONTRACTS A key distinction needs to be made here:

• Contracts can be either FOR or OF service. You give a contract of service to an employee, and a contract for service to a contractor. What’s the difference?

- An employee is someone who you, as employer, control in terms of hours, pay (taxes etc) and tasks to perform.

- A contractor is someone who is

responsible for their own hours,

pay (taxes etc) and they can hire

a sub-contractor.

1. Is under the control of another person, who directs as to how

when and where the work is to be done

2. Supplies labour only

3. Receives a fixed hourly/weekly/monthly wage.

4. Cannot sub-contract the work

5. Does not supply materials for the job.

6. Does not supply equipment for the job.

7. Is not exposed to financial risk in carrying out the job.

8. Does not assume any responsibility for investment and

management in the business

9. Does not have the opportunity to profit from sound

management in the scheduling of engagements or in the

performance of tasks arising from the engagements;

10.Works set hours or given a number of hours per week or

month.

11.Works for one person or business.

12.Receives expenses to cover subsistence and/or travel

expenses.

13.Is entitled to extra pay or time off for overtime.

The fact that an individual has registered for VAT or as self-employed does not

automatically mean that he is self employed.

CONTRACT OF SERVICE V CONTRACT FOR SERVICES

Under current Tax and Social Welfare law if the status of

an “employee” is found to be appropriate the person

engaging the employee is the accountable person for

any PAYE and PRSI deductible while the person was

engaged, together with appropriate interest and

penalties that may arise.

There may also be penalties under various Employment

Legislation for wrong categorisation of a person’s

employment status.

We strongly advise that you get professional opinion on any

contract where there is a question on “of and/or for

service”

ISME HELPLINE 01 6622755.

CONTRACTS • Every Employee is entitled to a written contract of

employment (terms and conditions). This must be done within the first month of engagement.

• The contract contains basic details of the job & title, who does the employee report too, the rate of pay, holiday entitlement, location & hours of work, notice and termination and Discipline & Grievance Procedure, amongst other things.

Contracts can be issued in a number of formats:

• Fixed Term Contracts

- Issued for specific periods only (4 year rule)

• Temporary / Casual Contracts

- Issued for open-ended temporary work

• Full-Time Contracts

- Issued for open-ended standard employment

• Part-Time Contracts

- Issued for open-ended part-time employment

The basic details of all contracts are the same, except:

• Fixed Term Contracts must state when the contract will terminate i.e. the date of engagement is from (date) and will end on (date) and that the Unfair Dismissals legislation does not apply.

• Temporary Contracts

must state what will

cause the contract to

terminate i.e. “when

the work is completed”

• Contracts are signed by Employee and Employer and each receive a copy.

• The contract can be backed up by a Company or Staff Handbook, which contains policies and procedures in greater detail, such as:

- Equality

- Bullying & Harassment

- Social Media

- Dress Code

- Discipline & Grievance Procedure (in full detail)

- Leave types and entitlements (in full detail)

• Together the Contract and the Company or Staff Handbook form the Terms & Conditions of Employment – a binding contract between the Employer and the Employee.

• These documents can and will be referred too by the Employment Appeals Tribunal ‘s Early Resolution Service (ERS), The Rights Commissioner and the Labour Court in the event of a dispute.

• NOTE: In 99% of cases brought before the Labour Court where there is no written contract, the Employer loses.

• Contracts of employment are covered by law in:

– Terms of Employment (Information) Act 1994-2001

• Other relevant Acts are:

– Unfair Dismissal Acts 1977-2005

– Protection of Young Persons (Employment) Act 1996

– Organisation of Working Time Act 1997

– Protection of Employees (Part-Time Work) Act 2001

– Protection of Employees (Temporary Agency Work) Act 2012

CHANGES TO CONTRACTS • Changes to contracts of employment can only be

made under certain circumstances:

– Following a change in employment law, in which case both employer and employee must comply;

Or

– By agreement between employer and employee

• Changes cannot be made unilaterally

• The requirement for both the employer's and the employee's consent to changes in the terms of the contract is part of contract law. This principle is not affected by the Terms of Employment (Information) Act, 1994 to 2001, which sets out the procedures for the employer informing the employee of any changes to the statement of the terms of employment.

• Unless a contract already allows certain changes to be introduced, there must be agreement between the parties. Where such an agreement is reached, the employee must be given the details of change(s) in writing within 1 month of their coming into operation.

Legally there is a distinction between the terms in a contract of employment and work practices:

• Contractual terms include pay, hours of work, sick pay and pension scheme. Changes to these terms must be agreed between employer and employee.

• Work practices can include breaks and rostering, for example. These may change without employee’s consent, as it is considered reasonable for an employer to update work practices or processes to save money or increase efficiency.

Questions ?

DISCIPLINE AND GRIEVANCE PROCEDURES • Key rules around discipline and grievance are fairness

and transparency.

• If both parties know what the procedures are, and how they will be used, the process should be straight forward and painless.

• But, the procedures MUST be publicised and available for anybody to read – they should be included in the company / staff handbook, for example.

DISCIPLINE - There can be four stages:

• Verbal Warning – first offence

• First Written Warning – second offence

• Final Written Warning – third offence

• Dismissal – fourth offence

Having said that, where there is a clear case of gross

misconduct (examples of which should be included in

any policy document), an employee may be dismissed

summarily without recourse to any preceding stage.

• At each stage, the following procedure should be followed:

– The employee is invited to attend a disciplinary hearing (this is given in writing). The letter contains date, time, place and purpose of hearing i.e. outline of the disciplinary issue and

that they (employee) may be accompanied.

– Hearing is conducted with one person designated as note-taker.

– Both sides state their side, with evidence presented, and questions and answers where appropriate.

– After hearing both sides, the chairperson adjourns the hearing to consider what action is to be taken.

– The employee should be informed that they will be recalled if not later that day then the following day.

– The hearing reconvenes, and the employee is informed of the disciplinary decision.

– The following day or as soon as is practicable, the employee is handed formal notification of the decision (a letter) and a copy placed in their personnel file.

– Both parties sign a copy of the notes taken.

• The letter handed to the employee should contain:

– Summary of the disciplinary hearing.

– What penalty has been awarded and an explanation as to why.

– Notice that the employee has the right to appeal (in writing within 7 days to the nominated person).

– That the disciplinary decision will be noted in the employee’s personnel file, and

– That any further breach of their contract, terms and conditions could result in further disciplinary action which could ultimately lead to their dismissal.

How to avoid calls for Unfair Dismissal:

• First, don’t dismiss employees for anything that could be considered discriminatory. The law can be a minefield, but actually it’s also common sense.

• Second, If you have to dismiss someone for disciplinary reasons – follow the correct procedure and document, document, document everything.

• Third, if you have to let people go through redundancy – be fair and transparent, and follow the correct process.

• When does Unfair Dismissal legislation not apply?

- An employee under 16 years.

- An employee who has reached normal retirement age.

- A person working for a close relative in a farm

- An Apprentice.

- An employee under a fixed-term / specified contract which contains an exemption clause.

- An employee on probation of less than one year.

- An employee working outside the State.

Questions ?

The Independent Business Organisation

RETIREMENT • According to the Equality Authority, an employer may

enforce retirement where:

– The company has a stated mandatory retirement age, either in a contract of employment or published policy document which employees are aware of; and

– The employer can provide objective justification for the retirement. Or

– An employee is no longer able to fulfil the terms of their contract (for medical, or health and safety reasons) and no alternative position is available.

• Employers should, however, be careful when stating the reasons for retiring an employee so as to avoid possible accusation of ageism or other discriminatory issues. In other words, when retiring an employee, the reason cannot be “because you are ‘xx’ years old”. The reason given must be because “the company has a mandatory retirement age of ‘xx’ years” as stated in your contract”.

• Objective justification can be, for example, to create opportunities in the labour market for persons seeking employment.

• Other such justification reasons could be:

- Establishing a balanced age structure, encouraging recruitment of young people and prevent disputes about the performance of older people;

- Motivation and dynamism through the increased prospect of promotion;

- Inter-generational fairness or preserving the dignity of older workers;

- Health and safety concerns.

So, what’s the correct retirement procedure? • First, make sure that you have a mandatory retirement

age stated in your contracts of employment.

• Second, ensure that 6 months prior to an employee reaching the stated mandatory age, write or speak to them to let them know retirement is coming up and that they will be leaving the company, in accordance with their contract.

There is no case for unfair dismissal or discrimination.

• If they wish to continue working and you agree, offer a fixed-term contract for say 12 months or 2 years.

If the employee is over the retirement age? • You can allow an employee to continue working, if they

request to do so, by using a fixed-term contract.

• However, where there is a concern about an employee carrying out certain tasks and duties, arrange for a Health & Safety Risk Assessment to be carried out.

• Based on the results, you should either offer alternative or reduced duties, or indicate to the employee that due to health & safety or even medical considerations they will be required to retire.

• Be aware that redundancy rules may apply.

Retirement and Employment Law • The principle legislation is the Employment Equality

Act, 1998 - 2011, which details the areas where discrimination can occur (age being one of 9 such areas).

• The Equality Act, 2004, provides further guidance and clarity on matters of discrimination .

• Other Acts include the Finance Act, 2011 (Lump sum payments), and relevant Protection of Employment Acts as they relate to employment types.

Questions ?

EMPLOYMENT ASSISTANCE JOBBRIDGE

JOBS PLUS

SUCCEED IN IRELAND

EURES European Recruitment Service

JOBSIRELAND (Free vacancy advertising for employers and vacancy search and

advice facility for jobseekers)

READY RECKONER

The Ready Reckoner will: •calculate your net weekly pay based on the following standard tax credits

• Single Person • Married Person or Civil Partner • Widowed Person or Surviving Civil Partner qualifying for One Parent Family • Widowed Person or Surviving Civil Partner without dependent children • One Parent Family • PAYE • Home Carer

•calculate your net weekly pay based on standard PRSI and Universal Social Charge rates •calculate Family Income Supplement (if it applies) •compare your net weekly pay plus any Family Income Supplement entitlements you may have with your existing weekly welfare payments •display a bar chart showing the results

IN-WORK OUT-OF-WORK READY RECKONER

The Ready Reckoner will not: •take all tax, income and expenses into account •take your personal circumstances into account •calculate for two income households •calculate for any social welfare payment other than Jobseeker's Payment •include any in-work income supports you may be entitled to other than Family Income Supplement •take additional tax credits that you may qualify for into account •take account of work associated costs such as travel and childcare •take Child Benefit into account as it will not be affected if you take up full-time employment •apply to those Jobseekers who:

• may be exploring self-employment as a possible option • are considering taking up part-time employment • are moving from part-time to full-time employment

http://www.welfare.ie/en/Pages/Benefit-of-Work-Ready-Reckoner-Introduction.aspx

IN-WORK OUT-OF-WORK READY RECKONER

USE THE

ISME

EMPLOYMENT LAW MANUAL

ALL TEMPLATES ARE

AVAILABLE TO MEMBERS

ON THE ISME WEBSITE

www.isme.ie

Phone : 01 6622755 Fax : 01 6612157 Email : info@isme.ie Web Page : isme.ie

The Independent Business Organisation

The Independent BusinessOrganisation