The Protection of Employees (Temporary Agency Work) Act 2012 became law on 16th of May 2012. Pursuant to section 3 of the Act, it applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer. An agency worker is an individual employed by an employment agency under a contract of employment by virtue of which the individual may by assigned to work for a person other than the employment agency.

On foot of this Act, all agency workers are entitled to the same basic pay as non agency workers employed by the hirer. They are under section 6 also entitled to the same basic working and employment conditions as an employee of the hirer who is engaged in similar work. Pursuant to section 14 of the Act, a hirer is under an obligation to treat an agency worker no less favourably than an employee of his own (with the exception of objective justification) with regards to collective facilities and amenities such as the canteen or child care facilities.

If you are an agency worker and feel that you have not been treated in accordance with this legislation we are able to help you make the appropriate complaint to the correct person or entity. If you are an employer and are wondering what your obligations are under this new Act, please contact us to discuss these issues and we can provide you with advice as to how to implement the new provisions.

The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 was published in the Official Gazette (Iris Oifigúil) on 19th of June 2012 from which date it sets out the current law. It replaces the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002.

The code aims to provide guidance on what is meant by sexual harassment and harassment in the workplace, how it may be prevented and what steps to take if it occurs. It seeks to promote the development and implementation of policies and procedures ensuring that working environments are free of harassment. The code is applicable to all employments, employment agencies, trade unions, employer bodies and professional bodies which are covered by the Employment Equality Act. It deals with sexual harassment and with harassment based on the grounds of gender, civil status, family status, sexual orientation, disability, age, race, religious belief and membership of the Traveller Community.

While this code does not impose any legal obligations, it is admissible in evidence and will be taken into account in any proceedings if any of the provisions of the code appear relevant.

Employers should put in place or review existing policies and procedures to ensure compliance with the provisions as contained in part 4 and 5 of the code. Part 4 sets out the elements which the policy should include and part 5 provides guidance on the complaints procedure to be included in the employer’s policy. Any new policy introduced by the employer or any review should be made accessible to all relevant parties and sufficiently published.

The Prevention of Corruption (Amendment) Act 2010 was signed into law on 15th December 2010 and amends existing anti-corruption legislation, especially the Prevention of Corruption Act 2001. While it applies to everyone, its purpose is to strengthen the law against corruption in public office and to provide specific protection for so-called “whistleblowers”. Whistleblowers are any employees who disclose wrongdoing in the context of their employment which could potentially be qualified as a corruption offence.

Any giving or receiving of an inducement, no matter if it presents a monetary gain or not, is an offence when it is done corruptly in return for the other person doing or omitting to do something in relation to his position or his principal or employer. The Act defines “corruptly” as “acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by other means.”

If an employee reports a corruption offence he will be protected from civil liability and from penalisation by his employer. The report has to be made to either the Irish police, the employer or a confidential recipient appointed by the Police Commissioner. However, the protection against civil liability or penalisation provided by the Act only applies where the employee acts in good faith. He does not act in good faith where he knew or was reckless not to know that his opinion was misleading, frivolous, false or vexatious and he will then be guilty of a criminal offence. At the same time, the employer will be guilty of a criminal offence where he penalises an employee who has reported or intended to report a suspected corruption offence. The penalisation by the employer includes every act or omission which affects the employee to his detriment. In that case, a redress procedure exists for the employee by way of a complaint to the Rights Commissioner.

Under this law, prosecution may also proceed for a corruption offence committed abroad by Irish public officials, but also by an Irish citizen, by any resident in Ireland or by any company registered in Ireland.

In the judgment by the European Court for Justice in the case C 224/091, Commission-v-Italy, dated 07/10/2010 it is held, that a coordinator for safety and health matters must always be appointed on a construction site on which more than one contractor is to be present.

This judgement affects owners of construction sites as it means that project supervisors no longer have discretion to decide whether or not to appoint a health and safety coordinator.

Redundancy – What are my entitlements/obligations?

It is an unfortunate reality that more employees are finding themselves in a position where they are being made redundant and more employers are being left with little option but to make staff redundant. Both employers and employees are sometimes unsure of their rights and obligations in these situations and we can advise on all of the relevant issues involved.

Redundancy payments in Ireland are governed by the Redundancy Payments Acts, 1963 -2007. All employees who are over sixteen years of age and in continuous full time employment for the same employer for at least 104 weeks are entitled to statutory redundancy payments under the Acts. The statutory redundancy payment is two week’s gross pay per year of service up to a ceiling of €600 per week plus one week’s pay, which is also subject to the ceiling of €600. This payment is tax-free.

In certain circumstances employers may pay employees an ex gratia payment in addition to the statutory redundancy payment however there is no legal obligation on them to do so and any payment in addition to statutory redundancy may be taxable. If a number of employees are being made redundant the rules for collective redundancies and consultation may apply and employers should take legal advice.

Employers can obtain a rebate of up to 60% of the redundancy payment by submitting the relevant forms to the Social Insurance Fund.

Is the redundancy legitimate?

Redundancy is where an employment of a person is terminated for one of the following reasons:

• Where an employer has ceased, or intends to cease to carry on the business for the purpose of which the employee was employed by him;
• Where the requirements of that business for the employee to carry out work have ceased or diminished or;
• Where the employer has decided to carry out the business with fewer or no employees;
• Where an employer has decided that the work for which an employee was been employed should now be done in a different manner for which the employee is not sufficiently qualified or trained;

Any employee meeting the qualifications highlighted earlier relating to age and length of service is entitled to a statutory redundancy payment in these situations. Where an employee feels that they have been unfairly selected for redundancy or that one of the above situations do not arise then they may have a claim for unfair dismissal. Employers should note that employees must be selected for redundancy using fair and objective criteria. Simply saying first in, last out may not be sufficient. In the event of a dispute and subsequent claim for unfair dismissal the onus will be on the employer to prove that a genuine redundancy situation existed.

What can I do if my employer is insolvent?

If your employer is insolvent and is not in a position to pay any redundancy payments or outstanding wages then the Department of Enterprise Trade and Employment can administer payments through the Insolvency Payments Scheme. Claims should firstly be directed to the liquidator or receiver who will then forward the claim on your behalf.

Duncan Grehan & Partners can advise on all aspects of redundancy payments and claims arising from same. Every effort has been made to ensure that the information above is accurate and up-to-date however we accept no liability for any errors or omissions. The information provided on this site is of a general nature and may not address your specific circumstances.

Main Provisions

The Redundancy Payments Act 2003 which became law on 25 May 2003 changed the obligations of employers to their employees who are being made “redundant”.

The Act significantly extends the statutory entitlements of employees in a redundancy situation. The main provisions are:

• A new flat rate of 2 weeks salary for every year of service by an employee, regardless of age.
• The government rebate of 60% of the statutory redundancy payment will remain.
• The qualifying 2 years service requirement is to remain.
• The maximum statutory ceiling of €507.90 per week will remain.
• Employees of insolvent companies can now claim minimum notice entitlements under the Insolvency Payments Scheme without first having to get an award from the EAT.
• The “contract of employment” will be as defined under the Employment Equality Act 1998.
• Removal of the age distinction for service by employees under and over 41 years of age.
• The present bonus week will continue.

Redundancy Payments Act 2003 (Commencement Order) 2005

Some changes of the Redundancy Payments Act 2003 came into effect on 25/05/03, and affect all redundancies notified after that date, while other sections of the Act came into force on 10/04/05 with the coming into force of S.I. No. 77 of 2005, Redundancy Payments Act 2003 (Commencement Order) 2005. More specifically, this Commencement Order will bring Sections 7, 11 and 12 of the Act into operation on 10/04/05.

1. Section 7 provides for the introduction of a comprehensive new redundancy form, to be known as Form RP50 which combines the existing forms RP 1 (Notice of Redundancy), RP2 (Certificate of Redundancy), RP3 (Rebate Claim) and RP14 (Employee’s Application for a Lump Sum from the Social Insurance Fund). Thus, an employee who receives notice of redundancy on or after 10/04/05 will receive his/her notice of redundancy on the Form RP50. This new form will provide the basis for any rebate/lump sum claim made by the affected employee. It will also be used to record receipt by the employee of the statutory redundancy amount from the employer and will be used by the employer to claim a rebate from the Social Insurance Fund. This form can be submitted electronically from 30/05/05 to the Department of Enterprise, Trade and Employment and if the employer is either unwilling or unable to submit the form the employee can do so themselves.

2. Section 11 stipulates the rates of redundancy payments in place since 25/05/03. An employee is now entitled to two week’s statutory redundancy payment for each year of employment if aged between 16 and 66, together with one bonus week. There is no longer any distinction made between years of service aged under 41 and over 41. When calculating a redundancy lump sum, the statutory ceiling on wages remains at €507.90 per week, and there continues to be no tax payable on this lump sum. Employees who have worked in a company outside the State and who return to Ireland and were subsequently made redundant in Ireland will now be entitled to a redundancy payment in respect of all their employment with the employer concerned provided that he/she has worked for two years in Ireland immediately prior to the termination of employment. Further, if the total amount of reckonable service is not an exact number of years, the “excess” days will be credited as a proportion of the year. Previously, if the total number of days worked included any part of a year less than 182 days, they were discounted. Now there shall be a payment in respect of that portion of a year. This amendment is found in Section 11 (2).

Section 12 deals with the method of calculating continuity of employment and reckonable service for the purposes of assessing the redundancy entitlement of the dismissed employee. As regards reckonable service, all breaks in employment more than three years before the termination date are disregarded. Breaks in the three years immediately before termination ares also disregarded except for the following:

• All lay off periods
• Periods of absence of more than 52 weeks, if the absence is due to occupational injury or disease.
• Periods of absence of more than 26 weeks, if the absence is due to any other illness or injury.
• Periods of absence of more than 18 weeks for materinity leave.
• Career breaks of more than 13 weeks in a 52 week period.

An employer who has paid his/her employee their correct statutory redundancy lump sum can apply to the Department for a 60% rebate of the sum paid within six months of payment of same. This rebate will only apply to employers who pay the statutory redundancy entitlement and give proper notice of redundancy (at least two weeks) to the employee. This 60% rebate to which they are entitled is paid from the Social Insurance Fund, into which they make regular payments themselves through PRSI contributions.

Fines

The Act provides that penalty for offences under the Act is now €3,000 – section 13.