Employer Resources Newsletter - October 2020
KEY CONSIDERATIONS IN PREPARING FOR A COVID-19 WORKPLACE INSPECTION
The Workplace Relations Commission (WRC) have released a notice to confirm that in conjunction with the Health and Safety Authority (HSA) and other State Agencies, WRC Inspectors are currently carrying out a programme of workplace inspections to monitor and give guidance to Employers regarding obligations under the Return to Work Safely Protocol obligations.
The HSA inspectors carry out inspections to monitor compliance with the Safety, Health and Welfare at Work Act 2005 and other relevant legislation which may apply at the time of the inspection. However, the Inspectors’ primary focus is a preventative one, which is to raise awareness among Employers, Employees, and other duty holders on their responsibilities under this legislation.
The Return to Work Safely Protocol sets out the steps and processes that Employers must take to mitigate the spread of Covid-19 in the workplace. The Safety Health and Welfare at Work Act 2005 contains a range of Employer’s responsibilities related to risk assessment, hazard identification, safety statement, training, supervision and visitors, all of which form part of the required actions under the Protocol.
At the time of Protocol publication, the Minister of Social Protection, Community and Rural Development and the Islands, Heather Humphreys stated that HSA will take a “collaborative approach the first instance as they oversee implementation of the Protocol. Inspectors will provide advice and support to Employers and Employees on how they are implementing the Covid-19 measures in the workplace, based on the Return to Work Safely Protocol.”
According to the Minister, the inspectors will also be able to visit the workplace and advise on any shortcomings through a Report of Inspection, which is left with the Employer at the end of the visit and can include timelines and follow-ups needed. They also have the power to serve an Improvement Notice, a legal directive from an inspector requiring that certain improvements be carried out in a specified time-frame, or a Prohibition Notice, a legal instruction directing that a specified work activity be stopped.
If an Organisation does not cooperate and comply with the public health guidelines after being asked to make improvements, the HSA will be able to order them to close down the workplace.
To this end, during a Covid-19 workplace inspection, Employers may be asked the following:
- Has the Organisation prepared a Covid-19 Response Plan?
- Has the Employer put adequate Covid-19 control measures in place?
- Have all Employees received Covid-19 Induction Training?
- Has a Lead Worker Representative been appointed?
To prepare for an inspection, Employers should focus on the following areas and ensure they keep records and documentation to ensure compliance:
Develop and regularly update their Covid-19 Response Plan:
- assess and identify the risks related to all work activities and put in place appropriate preventative measures to mitigate those risks.
- include and regularly update a response plan to deal with a suspected case of Covid-19.
- take account of the possibility of one or more persons displaying the signs of Covid-19 in order to have additional isolation areas available, or another contingency plan for dealing with more than one case.
- continue to monitor the response plan and amend this plan in consultation with Employees.
- identify and implement a system in place for Employees to raise concerns related to Covid-19.
- provide up to date information to all Employees on the public health advice issued by the HSE and Gov.ie.
Employers should prepare to provide their Covid-19 Response Plan for inspection and be able to respond to any queries related to it, such as measures put in place, procedures related to a suspected case, contact tracing and appointment of a Lead Worker Representative.
Implement preventative and control measures to minimise the risk such as:
- appropriate hand hygiene facilities,
- personal protective equipment,
- cleaning in line with government advice,
- adapting the workplace to facilitate physical distancing,
- displaying safety signs and posters.
Employers should be prepared that the Inspector will look for evidence related to the implemented measures and may walk around the premises to ensure compliance.
Have all Employees attend an Induction Training covering the following information:
- up-to-date public health guidance,
- signs and symptoms / spread of Covid-19,
- hand hygiene protocols and etiquette,
- physical distancing, self-isolation / restricted movement period,
- what Employees should do if they develop symptoms,
- how the workplace is organised to address Covid-19 risks,
- what is outlined in the Covid-19 Response Plan,
- mental and health well-being.
It is advisable to keep records of all training documentation and attendance records to be able to demonstrate to an Inspector that this has occurred.
Provide training for Lead Worker Representative (LWR) covering the following information:
- the functions of the LWR especially in communicating health advice around Covid-19 in the workplace.
- the structured framework to be followed by the LWR in order to be effective in preventing the spread of the virus.
- the implementation and monitoring adherence to the measures to prevent the spread of Covid-19.
- Covid-19 Response plan and other response documentation.
The inspector may seek to speak with the LWR to establish if they understand their responsibilities and received adequate training.
Employers are advised to consider the above recommendations to effectively manage a HSE inspection and keep their Employees up to date with any changes or new implemented measures as part of their Covid-19 Response Plan.
Protection of Employees (Part Time Work) Act, 2001 - CE Participant awarded €2,109
The complainant participated on a Community Employment (CE) Scheme with the respondent for approximately five years until 15th November 2019. The complaint was submitted to the Workplace Relations Commission to alleged breaches of the Protection of Employees (Part-Time Work) Act.
In correspondence submitted after the adjudication hearing had concluded, the respondent confirmed that there were three rates of pay applicable to directly employed full time drivers; €13.72 per hour, €15.20 per hour and €16.72 per hour. In response to this correspondence the complainant confirmed that his chosen comparator employed at the same location was paid €15.20 per hour and it was this figure that the complainant wished to use for the purpose of his complaint.
Summary of Complainant’s Case
The complainant contended to have been treated less favourably by the respondent on the basis of his employment status as both a part-time. The complainant stated that he was employed as a Van Driver and was paid approximately €10 per hour. The complainant stated that the directly employed Van Driver was paid €15.20 per hour at the material time. The complainant stated that he raised this issue and the issue of his inability to claim travel expenses with the respondent on a number of occasions but that the respondent did not follow its own procedures in relation to his grievances and that matters were unresolved when his participation on the Scheme ended in November 2019.
In relation to the claim for travel expenses, the respondent stated that having raised the issue locally, the complainant was paid his travel expenses in relation to the incident he complained of.
In relation to the complaints alleging less favourable treatment in breach of the provisions of the Protection of Employees (Part Time Work) Act, 2001, the respondent stated that the complainant must chose a specific comparator and demonstrate that he is engaged in “like work” with his chosen comparator. The respondent stated that choosing a directly employed comparator for the purposes of the complaint is misconceived as the directly employed employee is paid by the respondent organisation while the complainant is paid on the basis of a grant payment which is set and paid by the Department of Employment Affairs and Social Protection (DEASP).
The respondent stated that any difference in the level of pay received by the complainant is based on the fact that he is a CE Scheme participant and not on the basis of his status as a part time employee. The respondent further contends that any less favourable treatment of the complainant is objectively justified in line with Section 9 of the Act on the basis that the respondent is seeking to maintain the Integrity of the CE Scheme by paying the complainant the funds it receives from the DEASP grant.
Finding and Conclusions
Having consider the legislation the Adjudicator found that the full time Driver was an appropriate comparator for the purposes of the within complaint, within the meaning of section 7(3)(a) of the Act. The Adjudicator reached this conclusion on the basis that the uncontradicted evidence is to the effect that the work performed by the complainant and that of his comparator as the same in all material respects.
The Adjudicator considered the respondent’s contention that maintaining the integrity of the CE Scheme by discharging the DEASP grant objectively justifies the complainant’s rate of pay. Section 9(2) of the Act allows an employer to treat a part-time employee less favourably in respect to a particular condition of employment less favourably than a comparable full-time employee where there are objective grounds for so doing.
The Adjudicator found that the respondent merely asserted that paying the complainant less than his nominated comparator is necessary in order to maintain the integrity of the CE scheme under which he was engaged. The Adjudicator stated that no evidence was adduced, nor were any submissions advanced, to support that assertion. The Adjudicator stated that he was satisfied that a mere assertion, unsupported by evidence, is wholly insufficient to make of the defence of objective justification of the impugned difference in pay as between the complainant and his nominated comparator.
The Adjudicator stated that the respondent did not put forward any objective reasons that justify the less favourable treatment of the complainant. The Adjudicator calculated that the complainant (on the basis of a 19.5 hour working week) was paid €101.40 less per week than the comparator which for the cognisable period of the complaint totals €2,109.12. In relation to the payment of travel expenses, the Adjudicator noted that the complainant was paid the expenses in relation to the incident in question.
The complaint was well founded - The Adjudicator awarded the Complainant €2,109.12 in compensation.
This case is a reminder that the main purposes of the CE scheme to help improve the participants ability to get a job when the scheme. A CE participant should not be hired to perform the same role as a full time employee.
Retirement - Employee awarded €22,000 for breach of Employment Equality Act
The complainant worked for the respondent on a two-year fixed term contract and was paid €39,000 per year. The complainant turned 65 and then 66 during the period of the contract; his birthday is the 23rd April. His employment ended on the 20th June 2018, at the expiry of the fixed term. The respondent did not renew the fixed term contract, nor did it accept his application for the advertised role. The complainant asserts that this amounted to age discrimination. The respondent denies the claim of discrimination and states that it has a retirement age of 66 applicable to all staff.
Summary of Complainants Case
The complainant outlined that he was recruited by the respondent in 2016 two-year fixed term contract.
The complainant received a phone call from HR who mentioned that he would turn 65 during the contract and he would have to retire at this point. The complainant replied that he needed time to build up the project. He was informed the following day that he could work through to the end of the full two-year contract, i.e. beyond his 65th birthday.
The complainant said that the project was for five years and its funding from a named philanthropy group was dependent on achieving outcomes. The complainant outlined that the project involved a form of mediation that had never been tried before in Ireland. In January 2018, the respondent published its second-year report on the project. This concluded that target for the year has been exceeded and ‘the mediation service has proven itself to be an effective process which is delivering effective change in the lives of young people and families referred to it.’
It was decided that a second mediator would be appointed, and the complainant agreed to mentor whoever was appointed. When the respondent could not initially find someone for the role, the complainant suggested a colleague who he thought would be suitable. This person was interviewed and then appointed to the role. The complainant mentored this person following her appointment in or around February 2018 and she also completed a training course.
In February 2018, the respondent emailed all staff to say that the retirement age had been raised to 66. The complainant received a phone call that day to acknowledge he would turn 66 on the 23rd April 2018.
The complainant referred to his email of the 20th February 2018, when he cited section 34 of the Employment Equality Act. While the complainant knew his contract would end in June 2018, there was the possibility of new funding. He said that the project was now funded by the respondent themselves. The complainant also referred to his formal request of the 21st March 2018.
The complainant outlined that his role was then advertised internally, and he applied for the role on the 11th April 2018. His was the only application. He then received word back that his application was not processed, as set out in the email on the 4th May 2018.
The complainant said that he applied again as an external candidate and was told by the respondent that he would not be considered because of his age. The complainant outlined that the respondent initially found no suitable person for the role, which meant that he was sitting there, qualified and not able to apply for it.
The complainant said that he sought to meet the HR Director but only received emails that the position had since been re-advertised and filled. The complainant commented that he had since been asked to mentor the two mediators on a voluntary basis and that they had met on four occasions. The complainant said that his last day in work was the 20th June 2018, referring to the email of the 20th June.
The complainant outlined that in September 2018, the public body invited him to consult in a paid role for 20 to 40 hours per week. This role was to examine case load including the most complex cases. He outlined that there may be many agencies intervening with a family so there was a need for creative community alternatives to allow State bodies work together in their interventions. He said that they discovered that agencies worked in isolation. He said that, when seeking this role, no one has asked him about his age, but they did ask him about his knowledge.
The complainant outlined that, on taking the role with the respondent, he left a permanent job with a retirement age of 70. He commented that age should have been a positive and not a negative. The complainant said that he felt humiliated and hurt, in particular as this was a role he had dreamt about. He was not able to meet HR face to face.
The complainant submitted that this was a flagrant breach of the Employment Equality Act and the respondent had not advanced any objective justification for the ending of his employment. He had been already employed beyond age 65 and 66. He submitted that it was no defence to say that it was a fixed term contract. He submitted that the amendment to section 34 imposes the same obligation for objective justification to fixed term contracts. He agreed that his contract would end at the expiry of the fixed term, but not considering him for the role was an act of discrimination.
Summary of Respondent’s Case
In submissions, the respondent rejected the complaint of discrimination in relation to access to employment. The respondent submitted that the complainant had been employed between the 21st June 2016 and the 20th June 2018, when the two-year contract ended. The complainant reached the retirement age of 66 in April 2018 and the respondent allowed for the contract to run until its expiry in June 2018.
On the 21st February 2018, the respondent wrote to the complainant and all other staff to say that the retirement age was to increase to 66. The complainant asked for an extension and this was declined by the respondent. The respondent outlined that it would not consider his application for the advertised Mediation Worker role. The respondent outlined that it became aware of the complainant’s age during the Garda vetting process for the initial application.
The respondent submitted that the complainant was engaged on a two-year contract and could have no expectation of working beyond the term of the contract. This was why there was no age of retirement stated in his contract of employment. His employment ended at the end of the fixed-term and not because of his age.
In a reply of the 4th May 2018, the HR director outlines that the respondent has honoured the contract of employment. It acknowledges that complainant’s application for the role, but that he would not be called for interview as ‘you have reached the retirement age at this juncture.’ The email wishes the complainant the best in the future.
The complainant emailed to say that he would apply for the advertised role, so this was not a dispute about the ending of his employment. The respondent did not consider the complainant’s subsequent application as he was then above the retirement age.
The respondent relied on the CJEU decision in Fuchs & Kohler v Land Hessen (C-159 and 160/2010) regarding employment continuing beyond a retirement age. It submitted that permitting the complainant to work beyond the retirement age did not undermine the retirement age. This was also provided for by the Employment Equality Act.
The respondent stated that the fact of the complainant having ongoing cases cannot oblige it to retain him. The respondent outlined that the complainant was facilitated in being allowed to work beyond the retirement age and by the respondent extending the retirement age to 66. The respondent relies on Rosenbladt v Oellerking Gebaudereigungses (C-45/09) regarding the legitimacy of a retirement age. The respondent relied on the CJEU jurisprudence regarding an employee’s entitlement to a pension, for example Georgiev v Tehnicheski universitet Sofia (C-250/09 and C-268/09). The respondent submitted that the complainant was entitled to a retirement pension and it had also extended its retirement age to take account of the State pension age.
The respondent submitted that a legitimate aim was preventing future disputes regarding an employee’s fitness and to protect the dignity of employees. It outlined that it maintains a retirement age of 66, which is applied to all staff. The complainant’s employment terminated at the end of the fixed-term contract. His subsequent application was not considered as he was then above the retirement age.
At the hearing, the respondent submitted that there was no discrimination in this case. The complainant’s two-year fixed term contract came to an end and his application was not processed because he was then above the retirement age of 66. The respondent said that this was justified by the complainant’s entitlement to pension. It also referred to protecting the dignity of workers. It submitted that manpower planning allows the employer to anticipate people retiring, i.e. to train people in advance of pending retirements. It said that it would take account of future increases in the pension age.
The respondent outlined that it advertised for the 2018 role both internally and externally at the same time and recruited someone externally. It did not accept that the complainant was asked to mentor the other mediators. The respondent submitted that it had the same retirement age for all employees and so there can be no discrimination.
Finding and Conclusions
The Adjudicator stated that the first issue to consider is whether the complainant’s employment was subject to a retirement age. While the contract of employment signed by the complainant does not refer to a retirement age, The Adjudicator found that it was age 66. In reaching this finding, the Adjudicator noted the email of the 19th February 2018 that informs employees generally that the retirement age would increase to 66. The Adjudicator noted the case law that a retirement age can also be established through custom and practice or documents other than the contract of employment (see Earagail Eisc Teoranta v Lett EDA 1513).
The Adjudicator concluded that the retirement age fixed by the respondent was 66.
The complainant’s two-year fixed term contract ended on the 20th June 2018. He proposed to the respondent that he be given a further two-year contract. The project he was working on continued and it had been envisaged that it would run for five years.
It transpired that during the initial Garda vetting process, the respondent became aware that the complainant was then approaching the then-retirement age of 65. Just as in ADJ-00011207, the Garda vetting form requires the employee’s date of birth. This filling of a form was the first occasion that the employer became aware of the employee’s age. An employer might then be concerned about setting a precedent regarding employing someone above a retirement age.
After being informed that he would not be offered a second fixed-term contract, the complainant applied for the role advertised by the respondent, in effect his role. The respondent did not consider the complainant’s application, while acknowledging his disappointment. The respondent later employed a younger person to replace the complainant.
The Directive and the Employment Equality Act permit differential treatment of employees according to their age, so long as it is “objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. The Code of Practice and other instruments were enacted to help employers and employees tackle the issue of longer working.
In this case, having reviewed the evidence and submissions, the Adjudicator finds that the aims relied on by the respondent, for example relating to fitness and dignity, were legitimate. The Adjudicator stated that the means used to achieve these aims were not appropriate or necessary. It was not necessary to use the blunt indicia of age when fitness could have been readily assessed in other ways. The project, for example, was evaluated, and the line manager gave the complainant a glowing reference. This was also not a proxy for future fitness concerns or dignity. The complainant’s proposal was for a further two-year contract, i.e. not an extended or indefinite period.
What the legislative provisions and the case law require is that the employer examine the actual circumstances of the employee’s position to ascertain ‘appropriate’ and ‘necessary’. In this case, the respondent only cited the complainant’s age, rather than the particular circumstances. While he had reached the revised retirement age, the complainant advanced a strong case to continue for a further two years or for some other fixed term. He had successfully rolled out the first two years of the project. He helped expand the team of mediators and assisted in this colleague’s professional development. This role involved mediation with young people and their families in dysfunctional situations; it would appear that a mix of ages was appropriate in addressing these challenges. This possibility was not considered by the respondent; it only looked at the complainant’s age and this was disproportionate and, therefore, beyond what was necessary.
It follows from the above that the complaint pursuant to the Employment Equality Act succeeds. The respondent discriminated against the complainant because of his age in not allowing him to continue beyond the 20th June 2018. In assessing redress, the Adjudicator noted that this must be “effective, dissuasive and proportionate”. The Adjudicator noted that the complainant had forged a successful new career in family mediation; this was curtailed by age discrimination. To his credit, the complainant has explored other opportunities. The Adjudicator noted that the respondent is engaged in crisis intervention across many areas and is an approved housing body and a charity The Adjudicator noted that the complainant is in receipt of a pension earned by his service with the Defence Forces.
Taking these factors into account, in particular that the complainant’s role with the respondent ended through unlawful and less favourable treatment because of the complainant’s age, the Adjudicator awarded redress of €22,000.
In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €22,000 by way of compensation for the breach of the Employment Equality Act.
It is best still practice to specify a retirement age in contracts of employment so as to ensure that a compulsory retirement age forms a part of the Employees terms and conditions. It is important for the Organisation to be consistent in enforcing their retirement age to correspond with the contract. If an Organisation deviates from this contractual condition, it may set precedence for the future.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
NATIONAL MINIMUM WAGE INCREASING
On 6th October 2020 Minister for Social Protection, Heather Humphreys TD, secured Government approval to increase the National Minimum Wage to €10.20 per hour from 1 January 2021.
This represents a 10 cent increase on the current National Minimum Wage of €10.10 per hour.
Since 2016, the national minimum wage has increased from €8.65 per hour to its current rate of €10.10. The Government has now approved a further increase to €10.20 which will come into effect on 1st January 2021. It is reported that this will benefit up to 122,000 low-paid workers.
WORKPLACE RELATIONS COMMISSION ADJUDICATION SERVICE - DUBLIN HEARINGS IN LANSDOWNE HOUSE - (WRC) COVID-19 UPDATE
Oral Hearings in Lansdowne House in Dublin will proceed subject to continuing government advice and guidance.
A one-way system of entry and exit to the building has been implemented and is being observed. Visitors should walk on the right-hand side of the corridors. Further details are set out in the “Guidance for Visitors in Face to Face hearings in WRC Offices”. Parties are asked to wear face coverings upon entering the building until entering the hearing room and in public areas (e.g. reception/lobby, lifts, stairwell) within Lansdowne House, and when exiting the building.
On the day of the hearing, parties and representatives are asked to attend 10 minutes before their hearing is scheduled. Each party should not consist of more than three persons to include the named party, representative(s) and/or witnesses. Where additional witnesses are required, they should remain in the immediate vicinity outside the building until called. The lead representative on each side must have the means to communicate with that witness to enter the WRC hearing room at the appropriate time. Clear signage and sanitisation stations are in place throughout the building.
The WRC are continuing to ask parties and representatives to be positively disposed to complaints being adjudicated upon via both written proceedings and remote hearings.
The approach taken to date has been to ensure that we maintain critical and essential WRC Adjudication hearings. The WRC proposes to continue offering dates to parties to attend face-to-face hearings (subject to social distancing and associated health measures).
The WRC will review its scheduling of hearings against public health advice as it evolves over the coming time.
Providing a Safe Working Environment
As an employer, you have a responsibility to ensure your employees have a safe working environment. Under the Safety, Health and Welfare at Work Act, 2005 employers must evaluate the health and safety of workstations including those working work remotely, with particular focus on physical difficulties, eye sights issues and mental wellbeing.
To be compliant with legislation, employers must:
- Carry out an analysis or risk assessment of employee workstations
- Provide information to employees in relation to measures that have been implemented
- Provide training to employees on the use of workstations before commencing work with display screen equipment and whenever the organisation of the workstation is modified
- Perform a further analysis or risk assessment where an employee transfers to a new workstation or significant new work equipment, change of equipment or new technology is introduced at an individual’s workstation
- Ensure that the provision of an appropriate eye and eyesight test is made available to every employee.
A typical modern workstation comprises Visual Display Unit (VDU) or Display Screen Equipment (DSE) – typically a desktop computer, chair, telephone, and desk. Under the legislation, it is the employer’s duty to examine and assess the standards of health & safety of an employee’s workstation and take any corrective action necessary.
A competent person must carry out the risk assessment of an employee’s workstation. A person is deemed to be competent if he or she possesses sufficient training, experience, and knowledge appropriate to conducting a risk assessment of a workstation.
The team at Adare Human Resource Management have rolled out DSE (Display Screen Equipment)/VDU Training and Ergonomic Assessments for employees working from home. The comprehensive online training and assessment provides an ideal solution, particularly for employees working remotely. It ensures employers remain compliant with legislation while providing a safe and comfortable workstation for their employees.
For queries relating to DSE (Display Screen Equipment)/VDU Training and Ergonomic Assessments, contact the team at Adare Human Resource Management – email@example.com / 01 5613594.