by Nóra Cashe, Litigation Manager at Peninsula
Your business can only succeed if you manage the risks around employing staff.
Your employees benefit from a range of statutory rights under a large body of Irish employment laws. At minimum, you need to ensure you comply with these laws to avoid claims for breaching your employees’ statutory rights.
Employment law risks also represent HR opportunities. Many of the rights employees have under employment legislation are designed to safeguard their health and wellbeing and to ensure there’s a good balance of power in the employment relationship.
By taking a proactive approach to managing your employment law risks, you can also ensure your workplace culture is positive, your staff are happy and your bottom line is in the black.
So here we take a look at ten key employment law risks and how you can turn them into positives for your business.
1. Contracts/Documentation/Record Keeping
Your employees have a right to receive various terms and conditions of employment in writing. Your minimum duty therefore in this regard is to provide the required information in writing.
You are also required to retain certain employment-related information for a minimum length of time under various Irish employment laws.
We recommend preparing a bespoke contract of employment that is supplemented by an employee handbook that sets out a range of policies that are appropriate for your business. This documentation ensures that all employment-related issues are handled consistently and minimises your risk of breaching employment law.
2. Equality/Discrimination/Bullying & Harassment
The Employment Equality Acts 1998 – 2015 prohibit workplace discrimination. There are nine protected characteristics set out in the legislation and if you treat one employee differently from another on the basis of a protected characteristic, you risk suffering a discrimination claim.
In addition, if you don’t take steps to prevent bullying and harassment in your workplace, you also risk being held vicariously liable for any such unacceptable behaviour perpetrated by your staff.
It’s vital to have appropriate policies, communication and management training in place to ensure you maintain a respectful workplace culture and minimise the risk of discrimination-related claims.
3. Health & Safety
Employers must ensure their employees’ safety, health and welfare at work, as far as reasonably practicable.
The key employer obligations in this respect are the risk assessment process and issuing an appropriate safety statement.
Your risk assessment should identify any workplace hazards, any risks linked to those hazards and what control measures you can put in place to minimise the risk to employee health and safety.
The results of the risk assessment should then be used to prepare your safety statement.
Failure to adhere to your health and safety obligation can lead to criminal and financial sanctions.
4. Grievances and Disciplinary
Serious misconduct like violent behaviour, theft or fraud can really derail a business. It’s vital to manage these risks through the effective operation of appropriate policies and procedures.
As well as being aware of the values they are expected to uphold, staff should know that any grievances will be handled in the correct manner. If you fail to manage grievances with enough care, you risk demoralising staff who won’t want to work within an uncaring culture.
Preventing grievances in the first place should be the aim but failing to manage employee grievances properly will distract your management team from their main tasks, demotivate staff who think colleagues have not received fair treatment and ultimately hurt your business.
5. Data Protection
Employers process various personal data on prospective and current employees. This personal data can range from basic information such as names, addresses and PPSNs, to more personal data relating to occupational health, sick leave, performance reviews or disciplinary procedures.
You must therefore ensure that you have appropriate policies and procedures in place including a process for responding to subject access requests from employees, former employees and unsuccessful candidates involved in a recruitment process. You risk receiving claims from any of these stakeholders if they believe their data protection rights have been infringed.
6. Pay and Benefits
It’s important to comply with any minimum levels of pay that impact your industry. This could be the minimum rate of pay under the National Minimum Wage Acts or under a Sectoral Employment Order governing your industry.
Employers must also offer access to a Personal Retirement Savings Account (“PRSA”) if they do not operate a pension scheme.
Once the statutory minimum pay obligations are satisfied, it’s up to you to construct a salary and benefits package that will attract the right staff to your business.
7. Annual Leave, Family Leave and Right to Disconnect
There are now ten public holidays in Ireland. Staff receive one of the following benefits for public holidays:
- a paid day off on that day
- a paid day off within a month of that day
- an additional day of annual leave, or
- an additional day’s pay.
You must also provide staff with a minimum of 4 weeks’ paid annual leave per year. If an employee has only worked for a part of the year, you should provide them with paid holidays pro rata to the portion of the year they have worked.
There is also a wide range of family-friendly legislation to help employees with young families. You should have clear policies in place to handle maternity leave, paternity leave, adoptive leave etc.
The Organisation of Working Time Act 1997 also sets out minimum rest breaks and daily rest periods. There is a daily rest period of 11 hours in any 24 hour period and this effectively serves as an employee right to disconnect.
There is also a Code of Practice on the Right to Disconnect. While there are no legal obligations set out in the Code of Practice, it can be referred to in evidence during WRC or other court proceedings.
8. Termination of Employment/Redundancy
Employees with more than one year’s service have rights under the Unfair Dismissals Acts 1977 – 2015. Under the unfair dismissal legislation, a termination of employment is deemed unfair and if an employee makes a claim, the employer must produce evidence to establish otherwise.
Dismissals are typically justified by producing evidence that the employee’s competence, capability or conduct were the reasons for the termination. Employers typically lose these claims for failing to follow fair procedures prior to confirming the dismissal.
If you need to reduce your headcount, you must comply with the rules set out in redundancy legislation. The key compliance issues employers must consider are showing that a genuine redundancy situation existed and that employees are fairly selected for redundancy based on objective selection criteria.
The Protected Disclosures (Amendment) Act 2022 updated whistleblowing rules particularly for larger employers.
Employers with more than 250 employees must have a whistleblowing procedure that complies with the new legislation in place by 1 January 2023. Employers with between 50-250 employees must do likewise by December 2023.
Although not a legal requirement, employers with less than 50 employees should also have procedures in place to demonstrate that they are equipped to deal with any whistleblowing complaints appropriately.
10. Ongoing Employment Law Compliance
A wide range of new employment laws have recently passed.
The statutory sick pay scheme came into force in January and affects all employers.
The transparent and predictable working conditions regulations impact probation periods and employment contracts and documentation.
Most recently, a variety of new work-life balance rights including the right to request remote work will soon need to be acted upon by employers
About the author
Nóra Cashe qualified as a Barrister in 2008 practising in the area of Criminal law for some years, before joining the Peninsula team in 2014. During her time at the Bar, Nóra also volunteered with the Free Legal Aid Centres and was a member of the Irish Criminal Bar Association.
Nóra is the Litigation and Compliance Manager at Peninsula, leading a team of experienced Litigation Consultants in both ROI and NI. Nóra also represents Peninsula clients at Adjudication hearings, Conciliation and Mediation meetings before both the Workplace Relations Commission and the Labour Court.
Nóra has extensive experience in the area of Employment Law and HR Policies and procedures, authoring many articles for Peninsula and providing training to other departments within the Group.