Categories
Payment of Wages

COVID-19/Coronavirus-7 Employment Law Pay Scenarios

Will you be paid if public transport is shut down due to Coronavirus/Covid-19? 

Will you be paid if the schools close and you have to mind children at home? 

Will you be paid if you have to self isolate?

These are some of the questions touching upon employment law which are causing workers a great deal of concern and anxiety.

Let’s take a look at some possible scenarios.

  1. The employee contracts Covid-19

The employee’s sick pay entitlements, if any, will be those set out in the contract of employment and/or staff handbook. There is no legal or statutory entitlement, however, to sick pay. The employee may be entitled to illness benefit from the Department of Employment Affairs and Social Protection.

2. The employer closes down but the employee can work from home

The employee is entitled to be paid, assuming she is working.

3. The employer closes down but the employee cannot work from home

There is no entitlement to be paid and a temporary lay off situation may arise. An alternative is for the employee to take any accrued but untaken annual leave, in which case he would be paid.

4. The employee cannot come to work because she is caring for a person who has Covid-19

Force majeure leave may be applicable in this situation. However, the maximum amount of force majeure leave is 3 days in a 12 month period and the care must be for a close family member with the employee’s presence indispensable in the circumstance.

5. Public transport closes down and the employee cannot get to work

Unless there is provision in the staff handbook for pay it is extremely unlikely that the employee is entitled to be paid.

6. School has closed and the employee must mind a child

If the employee can continue working she would be entitled to pay. If she cannot work parental leave or annual leave or unpaid leave may be a possibility. Unpaid leave will need the agreement of the employer, however.

7. The employee returns from an infected area and the employer tells him to self-isolate

There is no entitled to be paid, unless the employee can work from home. However, if the employee was required to travel to the infected area at the request or direction of the employer, or in fulfilling his contract of employment, he would have a strong argument to be paid whilst self isolating on his return.

If the employee was returning from a holiday to an infected area he would have no entitlement to sick pay if required to self isolate but he may be entitled to illness benefit from the Department of Employment Affairs and Social Protection.

Illness benefit and Covid-19 (Coronavirus)

New measures have now come into effect regarding illness benefit. Three big changes include

  • The 6 day waiting period for illness benefit will not apply to any person who has Covid-19 or is in medically-required self-isolation
  • Illness benefit will increase to €305 per week for a maximum of two weeks for anyone in medically required self-isolation or for the full absence from work on account of a diagnosis of Covid-19
  • the normal social insurance requirements for Illness Benefit will be changed or the means test for Supplementary Welfare Allowance will be removed

You will find useful links about illness benefit, pay, and information for employers and employees on this Department of Employment Affairs and Social Protection page.

Conclusion

The best advice during this whole situation is to closely follow the advice of the Department of Health and the HSE experts, especially regarding social distancing and good hand hygiene. 

Hopefully, we will be looking back on this period as a peculiar, once in a lifetime event in the not too distant future.

Categories
Payment of Wages

Year End Bonuses in the Workplace-the Essentials

Disputes and rows often flare up around bonuses at the end of the year.

Disappointment and a sense of  betrayal are sentiments felt by employees when they discover they are not going to receive the expected bonus.

Not only is the bonus expected but there is a feeling, quite rightly, that it may well have become a contractual entitlement by reason of its payment over a number of years.

What is the legal position? Let’s take a look, shall we?

An employee will have a strong argument, in my view, that she has a contractual entitlement to a bonus if

  1. It has been paid regularly and consistently over a number of years with no regard to the bonus being contingent on a particular standard of performance, or any other targets and
  2. The contract of employment does not state it is discretionary.

If the contract or staff handbook states the bonus is discretionary the argument will swing towards the employer who will rely on the contract and adopt the position that the bonus is entirely at the employer’s discretion and there is no guarantee in that regard.

Departing employee

A further issue that can arise is whether an employee who is leaving is entitled to a bonus if he is no longer employed, or he has handed in his notice.

The Labour Court in Bord Gais Energy Limited v Thomas (PWD1729) held that he employee was not entitled to a bonus because the company rules said the employee must still be in employment with the company. Would the decision have been different, however, if this rule was not set out in a staff handbook or contract of employment?

If the employee had reached the targets for a bonus and was entitled to it when the targets and performance were assessed you would have to think the employee would still have a strong claim for that bonus even if she then handed in her notice and the bonus was not to be paid until the employee had left the job.

That assumes, of course, that there is no stipulation in the contract or staff handbook that the employee must be in employment at the time of payment of the bonus to be eligible for payment.

Conclusion

From an employer’s perspective it is advisable that it is made crystal clear in the contract or staff handbook that any bonus payment is at the sole discretion of the employer an will depend on the performance of the business and the performance of the individual employee.

It is worth noting what the High Court had to say in a bonus dispute case involving B&Q workers:

Cleary & Others v B&Q Ireland Limited (High Court, 8 January 2016) IEHC 119 which was a judicial review against the decision of the Employment Appeals Tribunal to uphold the employer’s right to withhold a summer bonus from the B and Q employees. The High Court held in favour of the employees because it noted the right of the employer to have discretion regarding bonus payments but also held that the discretion must be exercised reasonably.

The High Court also referred to a 2007 case Finnegan v J&E Davy [2007] IEHC 18 in which it was held:

The plaintiff could reasonably expect as a matter of principle built up from a number of years of consistent conduct in the payment of bonuses and the matter of discretion never having been mentioned to him at any stage that some bonus would be payable – the amount only dependent on the trading activities of the firm and his own performance

Categories
Payment of Wages Working Time/Rest Periods

The Sunday Premium Rate of Pay-How Much Should Be Paid for Working on Sunday?

If you work on Sunday you are entitled to be paid a premium pursuant to section 14 of the Organisation of Working Time Act 1997,

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

Paid time off or an allowance

You will note from section 14 of the Organisation of Working Time Act 1997 above that the Sunday Premium can be in the form of paid time off or the payment of an allowance of such amount as is reasonable in the circumstances.

Increased rate of pay

You will see that no specific amount is set out in the act for the rate of pay, it refers to ‘what is reasonable having regard to all the circumstances’. This leaves the Sunday Premium rate of pay open to negotiation between the parties and if agreement cannot be reached there may be a dispute referred to the WRC or Labour Court.

Labour Court guidance

It is to the Labour Court that we turn for guidance as to what is considered to be ‘reasonable’.  And from the decided cases we note a pattern emerging of the Labour Court finding that time and a third is considered to be ‘reasonable’ when it comes to the rate of pay.

Cases to be reviewed on this point include:

  • Chicken and Chips Limited t/a Chicken Hut and David Malinowski [DWT159]
  • Viking Security Limited and Valent [DWT1489]

However, the 33% premium is not a hard and fast rule and all the circumstances will be considered which led to a 25% premium being accepted as reasonable and even a 14% premium being accepted in Cadbury Ireland Limited v SIPTU [DWTO0720].

If you are an employer, therefore, you would have to be considering a Sunday Premium of at least 25% to have a good, stateable case that it is a ‘reasonable’ rate as envisaged by the Organisation of Working Time Act 1997.

Benefit in Kind not acceptable

The Labour Court has held that a premium must be paid and a benefit in kind-for example a free meal-is not acceptable and is not what was envisaged by the legislators when framing the act.

Composite rate of pay

If the contract of employment includes a rate of pay which claims to incorporate a Sunday Premium then the Sunday Premium must be identifiable; it is not good enough to simply state your rate of pay includes a Sunday Premium.

This is an easy mistake for an employer to make.

Update October 2019

An important decision was handed down from the High Court in this connection in October 2019, you can read about it here.

In essence, if a contract of employment contains a provision stating that the rate of pay has been calculated to take into account the requirement to work on Sunday this will almost certainly be sufficient and the employer will not have to provide evidence as to how much is being paid for working on Sunday. But you need to read the full decision of the case to fully understand the implications of this decision.

Categories
Payment of Wages Workplace Relations Commission

New Pay Rates and Conditions of Employment for Plumbers and Pipefitters

plumber and pipefitter SEO

Are you a plumber or pipefitter?

If you are there is a new sectoral employment order which sets minimum pay rates and other conditions of employment for you.

The sectoral employment order (SEO) came into force on 6th March, 2018 and covers the following employees:

Qualified Plumbers and Registered Apprentice Plumbers (Craftsperson) and Qualified Pipefitters and Registered Apprentice Pipefitters (Craftsperson) working in the Sector.
For the avoidance of doubt qualified plumbers and pipefitters who have acquired additional or advanced welding qualifications and who are required to function as welders on a day to day basis within the sector come within the scope of this Order.

Rates of Pay (hourly)

Category 1 €22.73
Category 2 €23.33
Category 3 €23.60

Apprentices

Apprentice Year 1 33.3% of Category 1 hourly rate of pay

Apprentice Year 2 50% of Category 1 hourly rate of pay

Apprentice Year 3 75% of Category 1 hourly rate of pay

Apprentice Year 4 90% of Category 1 hourly rate of pay

The SEO also defines the normal working week, normal daily working hours, and unsocial hours payments.

  • Hours worked between normal finishing time and Midnight Monday to Friday inclusive-time plus a half
  • Hours worked between Midnight and normal starting time Monday to Friday-Double time
  • First four hours worked after 7 am on Saturday-Time plus a half
  • All other hours worked on Saturday-Double time
  • All hours worked on Sunday-Double time
  • All hours worked on Public Holidays-Double time plus an additional day’s leave

The SEO also deals with pensions, pension contributions, a sick pay scheme and how disputes are to be resolved.

Legally Binding

This SEO is legally binding in the sector, regardless of whether the employer has a unionised workforce or not, as these are statutory minimum rates and conditions in the sector. These SEOs replace the old Registered Employment Agreements which were declared unconstitutional by the Supreme Court in 2013.

Here is a link to the full order: SECTORAL EMPLOYMENT ORDER (MECHANICAL ENGINEERING BUILDING SERVICES CONTRACTING SECTOR) 2018

Categories
Payment of Wages

Bad Weather Absence from Work-Should Employees be Paid?

bad weather employee pay

Have you missed work due to the ‘Beast from the East’ or ‘Storm Emma’, or any other bad weather event?

Are you entitled to be paid if you are not at work?

Can you be disciplined for failing to show up?

Let’s take a look, shall we?

Firstly, is there any policy in your workplace to deal with this?

Sometimes there is-for example, the Department of Education has certain policies in place for adverse weather conditions for the assistance of school management.

Most workplaces, however, will not have any policy to cover events such as weather related absences, or other exceptional events.

If there is no policy, and the employer decides to close the business it is almost certainly the situation that staff should be paid as the decision to close is the employer’s. The employee can argue that she is ready, willing and able to work and the decision to close was solely the employer’s. Arguably, this would be a breach of contract situation.

If, however, the employer does not close then the obligation is on the employee to show up for work.

Yes, I know, it appears harsh and bad weather events can play havoc on workers who have kids in school and the school closes, or there is significant difficulty in actually getting to work as public transport has curtailed or abandoned its service.

But the legal position is that if the employee does not go to work he will not be entitled to pay.

That’s not to say that many employers may choose to pay, or may come to some other arrangement such as giving the employee the choice of whether to take the day as a day of annual leave or not.

Disciplinary procedure

What happens if the employee does not make it to work and the business is open?

The employer can invoke the disciplinary procedure if she feels that the employee is acting the maggot and is using the bad weather as an excuse to take a ‘duvet day’.

It would not be advisable, however, for an employer to use the disciplinary procedure if there is a genuine problem with the employee making it to work.

Win the battle, lost the war

Employers should be mindful of not making the mistake of winning a short term battle, but losing the long term war.

What I mean is that the employer would be wise to take a more medium to long term view of events which may only last a day or two and demonstrate how much they value their employees, rather than cracking the whip in a way which may be counterproductive in the long term relationship between the employer and employees.

It would also be smart for the employer to have a policy to deal with extreme or exceptional events such as weather events or transport strikes and so forth, and to ensure it is clearly communicated to all employees. This could be included in the staff handbook, for example, and the staff handbook referred to in the contract of employment.