Transcript Document

Promoting Partnership in Supported Employment
Legal Responsibilities of Employers
2nd October 2008
Deirdre McHugh
B.A. LL.B. LL.M. Barrister-at-Law
353 Management & Legal Training Services
Outline
• Introduction
• Legal Compliance & the consequences of noncompliance
• Disability Act 2005
• Contracts of Employment
• 9 Grounds for Discrimination – focus on
Recruitment & Selection process
• Checklist.
Legal Compliance
• All people managers realise that they must be legally
compliant.
• Realistically, however, they can become distracted with
business and getting the job done.
• Management must at all times be vigilant in preventing
any negative issue arising.
• How?
1. By being legally compliant.
2. By recognising that a situation may be about to arise &
3. By preventing it happening
4. By diffusing it
5. By communicating effectively.
What are the Consequences of Non-Compliance?
• Company Directors & Managers can be found personally liable for breaches of
Health & Safety legislation.
• Failure to comply with Health & Safety Act 2005 may carry a potential prison term
of up to 6 months on conviction in the District Court, with up to 2 year imprisonment
&/or a maximum fine of up to €3 million on conviction on indictment in the Circuit Court.
• Loss of Working Time; High rates of absenteeism.
• Drop in Productivity & Profits; Reduced efficiency.
• Damaged Reputation
• Increased Cases taken to Court: Increase in Legal & Administration Costs
• Increased Insurance Premiums
• Additional costs of re-hiring.
• Low morale among staff.
•Reduced quality and quality control
•Atmosphere of tension
Disability Act 2005
The Act establishes a basis for:
• an independent assessment of individual needs, a related service
statement & independent redress & enforcement for persons with
disabilities;
• access to public buildings, services & information;
• sectoral plans;
• an obligation on public bodies to be proactive in employing people
with disabilities;
• restricting the use of information from genetic testing for
employment, mortgage & insurance purposes;
• a Centre for Excellence in Universal Design.
The Disability Act 2005 defines disability as follows:
“Disability, in relation to a person, means a substantial
restriction in the capacity of the person to carry on a
profession, business or occupation in the State or to
participate in social or cultural life in the State by
reason of an enduring physical, sensory, mental health
or intellectual impairment.”
· This includes an episodic condition which is a
permanent condition that may flare up from time to time.
Social life, leisure or cultural activities would include
watching TV, reading, listening to music, using a car
or public transport, going to the cinema, to a match or
other types of socialising.
Disability Act 2005
If the employer is being informed for the first time that a
person has a disability, that person may also wish to
discuss the matter with a designated official around any
requirements they may need to accommodate their disability,
including any health and safety issues for that person.
The employer is legally obliged under Employment Equality
leglisation to reasonably accommodate an employee with
a disability.
For example a person may require assistive technology,
changes to the workplace, changes to their duties or to
their work pattern.
The employer also has a duty of care to all employees
under health and safety legislation, for example to ensure
employees can safely evacuate the workplace in the event
of an emergency.
Disability issues.
• It is advisable that an employee inform an employer of
their disability so that reasonable accommodation
can be made for them for health and safety reasons.
• Employers/Interviewers should never discuss a person’s
disability. It is a matter for the medical practitioner to
advise the employer accordingly of whether a person
is fit to do the job or not.
Contracts of Employment
Must be in writing
Must be given within 2 months of starting work.
Contents as per the Terms of Employment
(Information) Act, 1994.
 Express Terms.
 Implied Terms.
Contents as per the Terms of Employment
(Information) Act, 1994.
•The full names of both employer and employee;
•The address of the employer;
•The place of work;
•The title of the job or nature of the work;
•The date of commencement of the contract of employment;
•Re: temporary contracts, the expected duration or
Re: fixed term contracts the date on which the contract expires;
•The rate or method of calculation of the employees remuneration
details as to what intervals the payment remuneration will be
made and how it will be paid;
Contents as per the Terms of Employment
(Information) Act, 1994. Contd.
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Hours of work including overtime;
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Paid leave (other than paid sick leave);
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Sick leave or for payment due to incapacity as a result of injury;
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Details of pensions or pension schemes;
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Notice Period.
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Reference any relevant and related collective agreements.
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Details concerning an employee’s requirement to work outside
the State.
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Notification of any changes in an employee’s terms.
Express Terms
In addition to the terms already discussed, some of the following terms
may be added:
1. Job Description
2. Exclusive service.
3. Probation.
4. Company Car.
5. Retirement Age.
6. Grievance Procedure.
7. Disciplinary Procedure.
8. Restrictive Covenants.
9. Search Clause.
10. Patents, Copyrights, Inventions.
11. Share Options.
12. Resignation of Directorships/Offices on termination of employment.
13. Proper Law.
14. Other Miscellaneous terms e.g. hygiene, punctuality etc.
Equality Act 2004
The 9 Grounds for Discrimination
Gender (male/female)
Marital Status(single, married, separated, divorced or widowed)
Family Status
Sexual Orientation
Age
Disability
Race
Religion
Membership of the Travelling Community
Employment Equality
Steps in Recruitment & Selection
that will be reviewed with Equality in mind
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Personal Specification (Job Description)
Advertising
Job Application Form
Shortlisting
Selection Tests
The actual Interview
Interview Assessment
Medical Examination
Offer of Employment
Appointment
Recruitment and Selection
Top Tips
When drawing up the Personal Specification – only those
specifications that are absolutely essential in order to do the
job competently should be used.
For example are certain academic qualifications essential to
perform the job, and if not, will such an unnecessary
requirement discriminate against non-Irish nationals.
Similarly, an upper age requirement of 25 year would be
discriminatory on grounds of age; a requirement to possess
a driving licence, if driving not an essential part of the job,
would discriminate against disabled people as they are less
likely to have a licence.
Recruitment and Selection
Top Tips
How/Where to Advertise
When making this decision, you must ensure that everyone
has the same opportunity to find out about a vacancy and
apply for that vacancy. Therefore employers should be
careful about placing an advertisement in a publication likely
to be read by members of only one sex or in a location that
discriminates against older people (e.g. a college). You
should also ensure that staff on leave (annual, maternity,
parental and sick leave) are informed of vacancies.
Recruitment and Selection
Top Tips
The Contents of the Advertisement
The advertisement must not indicate (either intentionally or
unintentionally) that the organisation is seeking to recruit a
member of a particular sex, martial or family status, a
particular age category, people of a particular race, people
without a disability and so on in relation to other categories
covered by the Act.
Be careful with choice of photograph for advertisement
Avoid where possible using terms like foreman or waitress
etc.(Jobs that were associated with members of a particular
gender in the past).
Recruitment and Selection
Top Tips
The Contents of the Advertisement
Use job titles which do not make reference to gender e.g.
operator, sales representative and so on. Where equivalent
male and female jobs exist, then both should be used e.g.
waiter/waitress.
Ensure that in any advertisement which contains reference
to experience and qualifications required, these are in fact
necessary for the candidate to be able to perform the job
competently.
Recruitment and Selection
Top Tips
Application Forms
If you use application forms in the selection procedure, care
should be taken in two respects:
That all who wish to apply can get an application form, and
That the form does not contain either questions which are
actually discriminatory or which give rise to an inference of
discrimination (Questions on marital status, numbers of
children, date of birth, place of birth and medical history
should not be on the job application form)
Recruitment and Selection
Top Tips
The Interview
This is the stage of the recruitment process where most
claims alleging discrimination are likely to arise. That is, that
discriminatory questions were asked at interview or a
decision on who to appoint was based on discriminatory
grounds.
It is very important that the interview panel is gender
balanced.
Generally complainants have found it difficult to prove that
they would have got the job if they had not been
discriminated against, but they have got compensation in
several cases for the stress allegedly suffered as a result of
discriminatory questions asked, or statements made by
members of the interview panel.
Recruitment and Selection
Top Tips
How to avoid discriminatory questions
Ask the same question from all candidates. If a particular
question on personal circumstances cannot be asked from
all candidates, then do not ask any of them.
Emphasise the demands of the job. For example, a
requirement to work overtime at short notice, requirement to
change shift at short notice, the fact that the job may entail
travel and involve staying away over night etc.
Ensure that all members of the interview panel are aware of
the requirements of equality legislation and implications
Recruitment and Selection
Top Tips
The Interview Assessment
Each interviewer should compare the attributes of the
candidate against specific criteria laid down in the personal
specification. Marks should be awarded first and their
outcome discussed afterwards.
All records in relation to the recruitment process should be
kept on file for at least 12 months. An individual can bring a
claim for alleging discrimination for up to six months after
the date of the alleged act and an extension for up to six
months is allowed where there is a good cause for not
referring a claim within this six months time period.
Recruitment and Selection
Top Tips
Pre-employment Medical
A pre-employment medical should form part of the
recruitment and selection process. Best practice is that
candidates should complete their medical prior to the job
offer being made.
Pregnancy/Maternity Leave
Candidates who because of pregnancy or maternity leave
cannot start work at the required starting date should not be
treated less favourably for this reason.
References
It is critical that appropriate reference checks are done. It is
equally important to know the person giving the reference as
well as getting a good reference on the potential employee.
Employer’s Checklist
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Do you have signed contracts of employment for every
employee?
Do you have a recruitment & selection policy &
procedure in place?
Do you have an interview checklist/list of questions in
place for every interview & do you mark accordingly?
Have you maintained records in relation to all shortlisting
& interviews going back at least 12 months?
Do you have a safety statement in place & have all of
your employees received a copy of it in their own
language?
Employer’s Checklist
6. Do you have a Health & Safety Policy?
7. Do you have a grievance, complaints &
investigation procedure?
8. Do you have a disciplinary policy & procedure?
9. Do you have a Working Hours & Time Keeping
Policy & Procedure?
10. Are your employees getting their proper breaks
& rest periods & can you prove it?
11. Are your employees working less than an
average of 48 hours per week & can you prove
it?
Employer’s Checklist
12. Do you maintain records for all employees
in relation to the following:
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Annual leave;
Public holidays;
Maternity leave;
Adoptive leave;
Parental Leave;
Force Majeure Leave;
Carer’s Leave.
Employer’s Checklist
13. Do you provide all your employees with a payslip
detailing their wages & any deductions being made?
14. Are you registered for PRSA & are you deducting
employees personal pensions at source?
15. Do you provide induction training to all your employees
& can you prove it?
16. Are all your managers trained according to their level of
responsibility?
17. Do you have a policy on Bullying, Harassment &
Discrimination in the workplace i.e. a Dignity at Work
Policy?
Employer’s Checklist
18. Do you have an equal opportunities policy in place?
19. Do you have an absence management/sick leave/sick pay
policy in place?
20. Do you have a probation policy in place?
21. Do you have a performance appraisal policy in place?
22. Do you have an Electronic Communications & IT policy
in place?
23. Do you have a Data Protection & Personal Information
Policy in place?
24. Do you have a leave of absence policy in place?
25. Do you have a work/life balance policy in place?
Employer’s Checklist
• If you answered NO to ANY of the questions 1
through 17, then you are not legally compliant.
• In relation to all the policies mentioned,
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Have you a written policy in place?
Have you reviewed it in the last 12 months?
Have you communicated it to all employees?
Have you trained all your managers/supervisors on
policy implementation?
Finally……
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Employers need to ensure that they are legally compliant at all times.
Follow what is in the contract of employment and in your policies and
procedures (provided it is legally compliant) rigorously.
Ensure your managers and supervisors are trained on the contract of
employment, your policies and procedures and ensure that they follow them
rigorously.
Remember if a dispute arises and an employee takes you to a court or tribunal,
in most cases you will be guilty until you can prove your innocence on the
balance of probabilities. This is not an easy thing to do if you do not have all
your paper work in order and can prove that your policies and procedures were
followed.
Employers need to remember that they are not medical practitioners & should
never decide on an illness and/or disability.
If in doubt, get legal advise.
Deirdre McHugh 353 Management & Legal Training Services
Thank you for your attention.
For further details, please contact:
Deirdre McHugh B.A. LL.B. LL.M. Barrister-at-Law
353 Management & Legal Training Services
Providence, Maree Road, Oranmore, Co. Galway.
Mob. (087) 2482075
Email: [email protected]
Website: www.353.eu.com