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Employment Law updates
Due to Covid 19 employment updates are available through virtual consultation. These are free to clients on contract or may be provided to non clients by virtual consultation.
The Government has proposed to introduce paternity leave with effect from September 2016, which will allow new fathers to take two weeks’ leave and receive a State Paternity Benefit of €230 per week subject to the father having made suitable PRSI contributions prior to the leave.
Once paternity leave becomes a statutory right, employers must treat employees taking paternity leave in the same manner as employees taking maternity leave or adoptive leave. If the employer pays an employee on maternity leave or adoptive leave their full salary during their leave, employers then should pay all employees taking paternity leave the same rate (i.e. full salary, half salary, etc.…). Failure to do so could expose the employer to potential claims of discrimination by fathers if it could be established that the only reason that he did not receive paternity leave pay was based on his gender, in the same way, it should be advisable for employers to adopt a consistent approach in regards of pay with all employees who are a taking protective leave.
The recent Equality (Miscellaneous Provisions) Act cites “….it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if –
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.”
So once the employer can justify the dismissal of an employee in this regard, this should not be a risk of potential claims of discrimination.
The followings are objective grounds accepted by The European Court:
- Health and safety concerns
- Succession planning
- Establishing an age balance in the workforce. encouraging recruitment of young people and preventing disputes about the performance of older people;
- Inter-generational fairness or preserving the dignity of older workers;
- Motivation and dynamism through the increased prospect of promotion;
- Encourage the recruitment and promotion of younger people;
- Avoidance of having to engage in capability / performance management;
- Creating opportunities in the labour market for persons seeking employment.
Sometimes employers offer fixed term contracts to those employees who are retiring, this contracts will be for a period after their retirement. In this case, employers must be aware of the implications of renewing fixed-term contracts. Renewing contracts that exceeds 4 years, may become contracts of indefinite duration, saying this, on expiry of such a fixed-term contract, the employers will have to be in a position to objectively justify a decision not to renew the fixed-term contract for a further fixed-term.
Under this legislation, the employers will have to objectively justify why offering a fixed term contract instead of allow the employee to continue working under his/her previous contract.
Annual Leave while on Sick Leave
We are all aware of the change around annual leave accruing while on sick leave which became effective in 1st August 2015.
It is now widely acknowledged that employees on sick certified leave will now accrue annual leave although there are few notable points around this rule:
1. The employee will only accrue annual leave while on sick certified leave: – this means that if an employee goes on sick leave but he/she is not handing over the appropriate medical certificates, the employer then will not take into account this period of absence when calculating their annual leave.
2. The employee cannot demand annual leave during sick leave: – an employee that is out sick cannot request to be paid or granted their annual leave entitlement while on their absence.
3. If the employee has not returned to work by the expiration of the 15 month carry over period after the leave year in question, then the entitlement in respect of annual leave in that leave year will expire: – let me explain this a little bit further, if this person in question is out of work for period of 15 months, then he/she will not be entitled to annual leave for this period and if they are absent longer than 15 months, we will discard the first 15 months and only take into account from then on.
Well we now know what should be taken into account in order to identify if an employee is entitled to annual leave while on sick leave, but how do we calculate his entitlement?
No calculation of annual leave is needed until the period of sick leave comes to an end. When the employee returns from sick leave, we should refer to the organisation’s annual leave policy in respect of the annual leave and when its runs from, however it is important to note that under section 2 of the Organisation of Working Time Act 1997, the leave year is defined as running from 1st April to 31st March, therefore annual leave entitlement should technically be calculated based on that year to avoid any breach. An employer must determine the dates of the employee’s absences and must also determine the untaken statutory annual leave accrued from the leave years and apply the 15 month carry over explained in section 3.
Said this, I will now give you a couple of examples that I hope will help you understand how to apply this rule:
1. John has been absent from work since September 2014 until September 2015.
a) As the rule only came effective on 1st August 2015, any period of absence before that is not taken into account.
b) The year runs from 1st April to 31st March, saying this John’s annual leave will be calculated from 1st August 2015 until 31st March 2016 and then from 1st April 2016 onwards.
2. Colin is out sick since October 2015 and certified up until May 2017.
a) Counting that the leave year runs from 1 April 2015 to 31 March 2016 – more than 15 months will have passed since the end of this leave year by the time Colin returns to work therefore no annual leave for this year carries forward.
b) We will move now on to the actual’s leave year from 1 April 2016 to 31 March 2017 – Colin will retain his accrued annual leave as the 15-month period from the end of this leave year will not have passed when he returns to work.
c) Leave year beginning 1 April 2017 – Colin will accrue his annual leave up to his return to work and as normal thereafter.
There are a couple of things more that I would like the employer to keep in mind when it come to a person in sick leave:
1. Employers should ensure that their contracts and policies reflect and are compliant with this amendment which supersedes any policy or contractual term that may state otherwise.
2. An employee will continue to accrue statutory annual leave entitlement if they remain on sick leave, subject always to a 15 month carry over period after the leave year in question.
3. An employer is not required to keep a position open indefinitely, although as part of a fair procedure is that an employee is aware that their job is at risk. Case law makes it clear how crucial is that an employee’s position and options have been properly examined before considering a dismissal for incapacity.
a) Whether the illness is considered to be a disability at law and the likely duration of the illness.
b) Consider all medical evidence available to include the employee’s medical evidence and evidence obtained independently (Section 16(3) of the Employment Equality Acts cites that the employer has to consider what (if any) special treatment or facilities may be available by which the employee can become fully capable. The also section requires that the cost of such special treatment or facilities must considered which will depend on the organisation’s size and financial resources).
c) The employee must be given the opportunity to present relevant medical evidence and submissions as well employer must show genuine engagement with the process of finding effective and practical measures to allow an employee to return to work.