Frequently asked questions

Do I need to advertise a position publicly? Recruitment Selection

No, an employer is not legally obliged to advertise a position publicly, however, it is best practice to advertise a position before making an offer to allow for a fair application process. In some circumstances, where a service is government funded the position may need to be advertised to fulfil the conditions of the funding/grant-aid.

Do I need to offer a position to an internal applicant first? Recruitment Selection

No, an employer is not legally obliged to offer a position to an existing or internal employee before an external one. The selection process should be based on overall suitability of an applicant to the position on offer, having granted a fair opportunity to all applicants.

Should the manager/employer conduct interviews? Recruitment Selection

While it is acceptable for a manager or employer to conduct the interview themselves, some prefer to outsource the interview process, or invite an impartial person onto the interview panel where applicants are internal (existing employees) to ensure a fair and unbiased process. Canavan Byrne can provide this service.

Do I need to let unsuccessful candidates know they didn’t get the job? Recruitment Selection

It is best practice to do this, and in the best interests of the company’s reputation. Afterall, this candidate may be suitable for another future position and should be encouraged to apply again should one arise. Unsuccessful candidates may also be in a better position to recommend your company to others if they had a positive experience of applying for a position.

Do I need to tell the person why they didn’t get the job? Recruitment Selection

Not necessarily, as this may prove difficult if there were many applicants, however, it is recommended to offer unsuccessful applicants the opportunity to seek feedback on their interview, within a reasonable time frame. Time can then be given to respond only to those who take you up on the offer within that time frame. This emphasizes why taking notes or using score sheets during an interview process is important, as it will ensure you have a record of that feedback to give, if requested. Once the time frame has passed, any paperwork relating to unsuccessful applicants may then be appropriately disposed of.

How many rounds of interviews can I call someone to? Recruitment Selection

There is no set limit, however, most recruitment procedures do not exceed 2-3 ‘rounds’ of interviews. Attending an interview can be time-consuming (preparation, travel, often time off work or making childcare arrangements etc) and can often be a relatively stressful experience for applicants. Best practice is to make a selection within the minimum number of interviews or ‘rounds’ possible.

The person I have offered the job to has now refused it. What can I do? Recruitment Selection

This can leave employers in an unexpected predicament, so it is worth making a formal offer to your applicant of choice first and outlining a reasonable timeframe for them to formally accept that offer, before telling other applicants that they have been unsuccessful. This means that should a first-choice applicant refuse the offer, a second-choice applicant may accept it. Should a second-choice applicant not be an option, an employer may have no choice to continue recruitment.

How many people should be on an interview panel? Recruitment Selection

While there is no secret number, a balanced and minimum number of interviewers, based on their specific requirement to be present, is best practice. More than 1 person on a panel is recommended to allow for opinions to be shared and a joint decision to be made. A gender balance and specific areas of expertise and experience may also be considered when deciding whom to include on the interview panel. It is always worth ensuring that an applicant is not made to feel any more stressed than they may already feel by being unnecessarily outnumbered.

What can I do to make the interview process as straightforward as possible? Recruitment Selection

Recruitment can be a time-consuming process for employers/managers. Include enough clear detail (location, job title, qualifications required, whether part-time/full-time or a cover role, commencement date, hours person will be required to be available, whether the location is accessible by public transport etc) in the advertisement. The more information available to potential applicants, the less likely it is that unsuitable applicants will apply. Request that applicants submit a detailed CV and cover letter for review by a particular date. The invitation to attend an interview can be based on a thorough review of the CVs and cover letters received to determine suitability. However, ensure you have very clear criteria set out ahead of reviewing CVs to ensure a fair opportunity for interview. Prepare specific questions for the interview to ensure you receive the responses you need to help you make a decision. Use a scoring sheet to help you make a decision; this will prove useful if you need to call applicants to ‘round two,’ or where you have two potentially suitable applicants.

Do I need to give my employees a contract? Contracts

There is a legal requirement (effective since March 2019) to provide a written Statement of Core Terms to all new employees within the first 5 days of their commencement of employment, and the same should be provided to existing employees. A contract ensures there is a mutually agreed clear understanding of what is expected by both parties throughout the course of employment. An employer must also issue a more comprehensive contract of employment to the employee within one month of the commencement of employment 

When should I give my employees a contract? Contracts

Within one month of commencement of their employment. However, since March 2019, the Terms of Employment (Information) Act 1994 outlines that a basic written Statement of Terms must be issued to an employee within 5 days of them commencing employment, which includes the following core terms of employment: Full names of employer and employee, address of the employer, expected duration of the contract, the rate or method of calculation of payment, the number of hours work expected per average day and week.

The contract itself normally contains much more information than a Statement of Core Terms.

What is the minimum information required in a contract? Contracts

A contract must contain a minimum of: the full name of the employer and employee, the address of the employer, the place(s) of work, job title or nature of the work, date of commencement of employment, whether the position is temporary, fixed term, or the expected duration of employment, the rate, method of calculation and frequency of payment, pay reference period for the purposes of the National Minimum Wage Act 2000, hours of work, including overtime, reference to paid leave, sick leave, any terms and conditions relating to pensions and/or schemes, period of notice and method of determining periods of notice.

Canavan Byrne can assist with developing a contract that contains all relevant and up-to-date contents that are specific to your company.

What different types of contracts exist? Contracts

There are a variety of different contracts in the Early Years and School-Age Sector, including Permanent (full-time or Part-time) contracts, Term-Time contracts, Fixed-Term (Specified-Purpose) contracts, AIM contracts and Relief contracts. It is important to allocate the correct contract to the correct individual to avoid any misunderstandings. Canavan Byrne can assist with all types of contracts specific to your employees.

What if an employee breaches their contract? Contracts

Depending on the nature and severity of the breach that occurred, this may invoke a company’s disciplinary procedure. A review of the contract will be required to determine what the consequences of such a breach might be. It is also vital that a set of clear comprehensive policies accompanies the contract, and these are provided to all employees. Training on these policies and regular supervision will ensure that employees understand what is expected of them and the procedures in place for responding to breaches of policies or grievances an employee may have.

Canavan Byrne can assist with conducting Disciplinary Procedures and with the development of all required policies and training.

What do I do if I need to change something in a contract? Contracts

An ‘Addendum’ should be written up, dated, and signed off on by both employer and employee. This confirms the change, the date it is effective from, and the agreement by both parties in the form of a signature. Canavan Byrne can assist you with the writing of Addendums.

Do I need to renew a fixed-term contract? Contracts

No, not if a specific end date has been clearly outlined within this specific-purpose contract, or when the task/project has been completed (for example, covering a person while on maternity leave). However, you cannot issue an employee with continuous fixed-term contracts. An employee who has been employed on two or more fixed-term contracts within a 4-year duration must be offered a permanent position by their employer should they require further employment. There must be strong objective grounds to justify an employer’s ongoing renewal of an employee’s fixed-term contract after 4 years.

Do I need to renew an AIM contract? Contracts

No, not necessarily, as an AIM contract is a form of ‘specific purpose’ or fixed-term contract and is normally dependent on the continued receipt of Level 7 funding following an approved application for a child or children for the duration of time they are registered with the service. Canavan Byrne can assist you with developing an AIM contract that specifies this.

What do I need to do if an employee resigns? Contracts

A resignation must be submitted in writing to an employer. While an employer may choose to persuade an employee to remain in employment, legally they cannot refuse to accept a person’s resignation. An acceptance of a person’s resignation should be submitting in writing to the employee. Where the reason for the person’s resignation is not outlined, it is advisable that an employer offers an opportunity for an employee to disclose the possible reason. This can take the form of an ‘exit interview’, which many companies choose to include as a clause within the contract.

My employee has resigned because they feel they have no other choice. What can I do? Contracts

Sometimes a resignation may occur due to a conflict arisen, or, for example, where an employee has been accused of something that has invoked the disciplinary procedure, or where an employee’s request for change may have been denied. A meeting should be offered to an employee at the soonest available opportunity to explore the circumstances leading to their decision and to assess what interventions (if any) can be put in place or whether a solution or compromise can be agreed upon.

It is very important for an employer to be proactive in granting opportunities for employees to resolve conflict as quickly and easily as possible (either informally or formally) and to remind all employees of the company Grievance Policy should they wish to make a formal grievance. An employee is less likely to resign their position if they are aware of the procedures in place and steps available for them to take should conflict arise or should they feel their working conditions are in any way unfair or unreasonable. Employees should also be made aware of their right to attend a disciplinary meeting with a representative and of their right to appeal any sanction that may be implemented.

How long should a probation period be? Performance Management

On 16 December 2022 the Government signed into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022.

Probationary periods now cannot exceed 6 months except on an exceptional basis and even then, cannot be longer than 12 months where this would be in the interest of the employee.

If an employee is on probation and absent for a long period of time (e.g. statutory leave) their probationary period may be extended by the duration of employee absence.

Any probationary period in a fixed-term contract must be proportionate to the duration of the fixed-term contract and the nature of the work. Renewed or extended fixed-term contracts (for the same work) must not be subject to a probationary period.

Do I need to do anything during an employee’s probation period? Performance Management

Yes. It is recommended that an employer (or the assigned manager) is proactive during the probation period. The purpose of a probation period for both the employer and the employee is to assess suitability for the role, monitor progress, identify areas in need of improvement or further support, and for the employer to issue feedback to the employee on their performance in their new role. A written log of an employee’s probation review meetings is recommended, particularly where an employee may not be deemed suitable for the position following this review, or where a resignation or dismissal takes place. Canavan Byrne can provide a series of templates and helpful guides to managing probation periods correctly.

What do I do if an employee is not meeting the expected standards during the probation period? Performance Management

Review the standards expected with the employee first to ensure they are clear on what those expectations are, considering they are new to the role and to the company. Communicate the concerns clearly and specifically, using examples, to the employee and allow them to respond with any possible reasons as to why those standards are not being met. This can be carried out during a mid-point review meeting, which allows the opportunity for communication, to identify any supports required, to plan and agree on specific targets and provide the remaining time within the probation period to achieve them. Depending on the severity of the situation, an employer may also consider applying an extension to the Probation Period (for example 3 months) to grant an employee further opportunity to make required improvements.

Can I dismiss an employee with immediate effect if they are not successful in passing their probation period? Performance Management

A dismissal should not take place during a probation or at the 6-month mark without some form of fair process to justify it. An employer can still be subject to a legal claim under the Employment Equality Acts, or to the Courts for wrongful dismissal in cases where an employee is dismissed during or following a probation period without having served 12 months in that employment. An employee should also be informed whether or not they are expected to work their notice period (normally 1 week during probation, once an employee has 13 weeks of service ) or will be paid in lieu of that period instead (dismissal with immediate effect).

Do I need to do anything when an employee successfully passes their probation? Performance Management

Yes, you should confirm their successful completion of the probation period and confirmation of their employment in writing.

What can I do to ensure employee’s maintain good standards after passing their probation period? Performance Management

An employee’s performance can continue to be monitored and supported in a variety of ways to ensure that expected standards continue. These can include holding regular one-to-one appraisal meetings where constructive feedback can be issued, using a range of performance measurement tools (scoring of or discussion of key areas and jointly identifying where improvements are required), and through ongoing support, supervision, demonstration, and training. Where channels of communication are active and accessible, an employee is more likely to feel supported as a valued member of the team. This means they are more likely to enjoy what they do and maintain expected standards. Canavan Byrne have a range of Performance Management and Measuring Tools, as well as Training, available to assist.

What can I do if I have offered all the supports I can, and an employee is still not meeting required standards? Performance Management

An employer/manager can consider implementing a Performance Improvement Plan (PIP) and giving an employee formal notice of this. The purpose of a PIP is to directly communicate concerns and key areas relating to an employee’s performance, to outline specific targets, ways to achieve them and give a reasonable timeframe for the improvement of those targets. A PIP should also outline the possible consequences for an employee where improvements are not made. Regular reviews of those targets are required to take place, as well as constructive feedback and support. Canavan Byrne can assist with developing a PIP template to help structure and record a PIP correctly.

What are the consequences for not improving following a PIP? Performance Management

Failure to make the required improvements can warrant a company’s disciplinary procedure, which may result in imposing a sanction up to and including dismissal. Employers should also consider a short extension of a PIP in the case where some and not all the targets have been met. Where an employee is deemed unsuitable for a particular role, a reallocation to a more suitable one, or demotion may also be warranted.

My employees are taking their Annual Leave at inconvenient times, and it is putting pressure on the company. What can I do? Leave Management

As a ratio-bound sector, when an employee is absent, a suitable cover person must be put in their place to maintain correct adult-child ratios. This emphasizes the need for a clear policy and process for the requesting and granting of Annual Leave. For example, an employer may include a 6-week request period ahead of an employee’s Annual Leave to allow sufficient time for a cover person to be arranged. An employer may also request that Term-Time employees prioritise Non-Term Time weeks for their Annual Leave periods, to help minimise the pressure of seeking cover. While employers are encouraged to facilitate and grant their employee’s Annual Leave as paid time off wherever possible, clear communication is required to ensure that the process is a reasonable one for both employee and employer.

Two employees have requested Annual Leave at the same time. I cannot facilitate this as I will not have enough cover in place. What can I do? Leave Management

As a ratio-bound sector, it is important to be equipped with solutions to manage situations such as this. Implementing a first-come first-served approach to the requesting of Annual Leave (and using request forms to keep a record of this) is one option. Offering a compromise to employees following their request, should it not be possible to grant it, is another option (for example, I can grant you week X instead of Y). Some companies plan for collective Annual Leave in Non-Term time periods (such as July and August) by pre-arranging relief cover, developing a holiday roster in collaboration with employees or by closing their service for a period of time.

How do I know how much Annual Leave my employees are entitled to? Leave Management

Full-time employees have an automatic entitlement to a minimum of 20 days per annum paid Annual Leave. Any additional days (such as privilege days) are at the discretion of the employer to grant.

There are 3 methods of calculating Annual Leave for part-time employees – that which gives the greatest financial advantage to employees should be the chosen method by employers.

Method 1 - Most part-time employees have their Annual Leave entitlements calculated at 8% of the hours worked within a leave year, and this is subject to a maximum of 20 days. For example, if Sandra works 15 hours per week (3 hours per day) within a term-time year (38 weeks) the total is 570 hours worked. 8% of 570 hours is 45.6 hours (round it up to 46 hours), which is the equivalent of 15 days Annual Leave entitlement.

Method 2 – Where an employee has worked at least 1,365 within the company’s leave year, he/she is entitled to a maximum of 4 weeks (20 working days) paid Annual Leave.

Method 3 – Where an employee has worked at least 117 in the calendar month, he/she is entitled to 1/3 (one third) of a working week for each calendar month worked.

An employee worked part of the leave year as a part-time employee, and the other part as a full-time employee. How do I calculate their Annual Leave? Leave Management

An employer should calculate the part-time period separately to the full-time period the person was employed. For example, if John was employed to work 20 hours for the first 20 weeks of the leave year (4 hours per day), and then 40 hours for the remaining weeks of the year (8 hours per day), using the 8% method of calculation, he is entitled to 7 days Annual Leave (part-time period entitlement) and 13 days Annual Leave (full-time period entitlement), which is a total of 20 days in that leave year.

Our policy states that a medical certificate is required only on day 3 of absence. One of my employees is frequently absent due to being sick for only 2 days and this is putting pressure on the company. What can I do? Leave Management

First, ensure your policy sets out clear expectations around the way in which absence (or intended absence) is to be communicated (how, when and to whom). For example, should an employee feel unwell and unfit for work, they are required to phone the manager at the latest by 8am that morning, or in the case a manager is not reachable, an employee is required to phone X and explain why they are unfit to attend work. A policy may include that text messages, emails and/or voicemails are not acceptable means of communicating intended absence.

While people do get sick and should not be expected to arrive to work if they are unwell, it is important to monitor and keep a record of any patterns of absenteeism that may emerge (for example, an employee may be absent for 9 days per year, but each of those days followed a Public Holiday). An employer should bring any obvious patterns of absenteeism to the attention of an employee. Illness does not tend to follow patterns, people do.

Carry out Return (or WARM) interviews. These are brief meetings held between an employer/manager and an employee following each absence (even if only 1 or part of a day). The record held of these can also help to assess any patterns or concerns with absenteeism to be brought to attention. Canavan Byrne have developed various templates to assist with Return/WARM Interviews.

What information should a valid medical certificate contain? Leave Management

A valid medical certificate should be clear and readable. It should be issued only by a registered medical practitioner, showing the name and address of the medical centre the practitioner is affiliated with. It should be addressed to the recipient of the certificate, include the date the assessment/appointment took place, and the date up until the employee is deemed unfit to work (or the length of time the employee is deemed unfit to work). It should be signed (and stamped) by the relevant practitioner.

I am not convinced the medical certificate I have received is a valid one. What can I do? Leave Management

If any of the information outlined in Question 4 is missing, an employer can request that the employee seeks an additional certificate (or asks their GP to make those additions) to include all relevant required information. There is also a list of all registered practitioners on the Medical Council website. Where a medical certificate is not legible, or you feel it has been tampered with or amended, this should be brought to the attention of the employee. An employer may wish, with good cause, to contact the GP to request that they verify that they provided the certificate and that the detail on it is accurate.

An employee has submitted a valid medical certificate, but it does not state what the cause of absence/illness is. What can I do? Leave Management

An employee may not wish for their employer to know the nature of their medical condition or illness, as this is considered personal data. An employer cannot demand this information either, however, an employer’s duty of care does extend to ensure that employees are facilitated in any way possible to work safely in their workplace on return. During a return interview an employer can invite an employee in confidence to indicate any concerns they may have in relation to their ability to work, or requirements they may have.

An employee has submitted a medical certificate that states ‘work-related stress’ as the cause for illness/absence. What can I do? Leave Management

While it is important for employers to allow employees their undisturbed leave, it is OK to reach out to an employee on sick leave to wish them well and grant them on opportunity to contact their employer/assigned manager during their leave period. An employer’s duty of care extends to ensure employees are not subjected to any unnecessary stress at work that may lead them to discontinue work, and to ensure that they are proactive in minimising this in any way possible. Without knowing what the causes of or triggers for work-related stress may be, it is very difficult for employers to take action to minimise it, or to risk-assess the situation correctly. Employers should outline this to employees during a Return Interview or reorientation meeting.

An employee has decided to return to work before the date indicated on their medical certificate. What do I do? Leave Management

Should an employee feel that they are fit to return to work before their GP has predicted they would be fit to return, an employer can request that a note is submitted from the GP to confirm fitness to return. Depending on the reason for the person’s absence, a risk assessment may be required to be carried out to ensure they are ready to return and that an early return poses no additional risk either to themselves or to children in their care.

An employee has failed to submit a medical certificate while they have been absent. What can I do? Leave Management

Regardless of whether a company pays for sick leave periods or not, a medical certificate should be submitted (if possible, ahead of the intended period of absence) to account for the absence. While an employee is on ‘certified sick leave’ they will continue to accrue Annual Leave entitlements. In the case that an absence is not accounted for by a medical certificate, this can be considered ‘unauthorised leave,’ during which an employee does not accrue Annual Leave entitlements. Failure to provide medical certification to account for absence, as per the company’s policy, may result in a Disciplinary Procedure.

How long is long-term sick leave? Leave Management

The definition of ‘long-term’ is normally dependent on the reason a person is on sick leave in the first place. For example, 4 weeks may be considered long-term sick leave for having the flu, but a reasonable sick leave period for someone recovering from major surgery. Where the reason is unknown, or vague, a period of more than 6 continuous weeks may be cause for questioning.

What are my options for someone on long-term sick leave who keeps submitting medical certificates? Leave Management

Referral to an Independent or Occupational Medical Advisor (OMA) is recommended to help employers establish whether an employee is deemed fit to return to work, and if so, when that is likely to be. An assessment by an OMA may also help indicate to an employer what accommodations are required to be put in place to facilitate an employee’s safe return to work. Canavan Byrne assist with referrals to Independent Medical Advisory Clinics.

What happens with Annual Leave for someone on long-term sick leave? Leave Management

Sick leave that is medically certified is a form of protective leave (ie. the person is still very much an employee) and therefore, the accrual of Annual Leave continues as if the person was in work.

However, in the case of long-term sick leave where a person is unable to take their Annual Leave due to illness, a carry-over period of 15 months after the leave year in which the Annual Leave accrued is permitted. After this 15-month period, the Annual Leave entitlement expires.

If an employee resigns during this period of sick leave (including in the 15-month carry-over period), the Annual Leave entitlement should be paid to the employee instead of the paid leave they were unable to take due to illness.

Do I need to pay my employees for Public Holidays when they are on leave? Leave Management

Generally, full-time employees on sick leave are paid for Public Holidays (there are 9 per year). A full-time employee on sick leave is only entitled to payment for Public Holidays that fall within the first 26 weeks of continuous sick leave, after which period they are no longer entitled to payment for Public Holidays.

A part-time employee is entitled to payment for a Public Holiday only in the case where they have worked at least 40 hours in the 5 weeks leading up that Public Holiday.

If a person does not normally work on the day the Public Holiday falls, they are entitled to 1/5 (one-fifth) of their working week’s wage, even when they are never rostered for that day.

Do I have to grant an employee Parental Leave and who is entitled to it? Leave Management

Yes, an employer must grant this request to any eligible employees who request it. An employer can postpone granting it, with grounds to refuse (such as lack of cover, or another employee on Parental Leave) but only within a 6-month period after it has been requested.

Since 1st September 2020, all parents (including adoptive parents and persons acting as parent to a child) are entitled to a maximum of 26 weeks unpaid Parental Leave for each child up to their 12th birthday. Certain exceptions apply where a child has been diagnosed with a disability, or where adoption of a child has occurred between age 10 – 12 years.

Parental Leave should be taken in one continuous 26-week block but may also be taken in two separate blocks (a minimum of 6 weeks each) with a gap of 10 weeks between each block. Any arrangements other than these are at the discretion of the employer.

Do I have to pay my employees while they are on Parental Leave? Leave Management

No, Parental Leave is a form of unpaid leave, however, employees will continue to accrue Annual Leave as is they were at work, as well as being entitled to any Public Holidays that occur during the period in the same way as the entitlement would occur if at work.

Are Part-Time employees also entitled to 26 weeks Parental Leave? Leave Management

Yes, however, if an employee works 20 hours per week (50% of a ‘normal’ working week) their Parental Leave may be reduced on a pro-rata basis (example – 13 full working weeks’ worth of leave).

An employee has accused another employee of something. What happens next? Disciplinary

It is important to ensure that all accusations or allegations are acted on and that appropriate inquiries are made into them with a view to resolving and addressing them. This starts with gathering as much detail as possible in the preliminary stages around the nature of the allegation/s. An employer should request that the accusation is submitted in writing by the accuser and that enough relevant detail is included within it. An employer may carry out a ‘fact-finding’ process that includes gathering statements, establishing whether there were any witnesses, or sometimes viewing of CCTV. An employer must decide whether the accusations warrant invoking the company’s disciplinary procedure, or whether they will be addressed informally. This will depend on the nature and severity of the accusations. An employer should also inform the accused of the allegations made against them and outline the procedure that will follow as a result. Canavan Byrne can assist with determining whether allegations or complaints warrant a disciplinary process, and with the process itself.

How do I know whether to suspend an employee? Disciplinary

The decision to suspend an employee depends first on the severity of the allegation(s) made against them, and whether they account for suspected gross misconduct. Where the health, safety or welfare of a child is deemed possibly at risk as a result of an allegation, a move to suspension should be made in a timely manner to minimise any possibility of risk. An employee can and should be suspended on full pay immediately following receipt of series allegations made against them. Allowing an employee to continue in employment following serious allegations may place children or other staff members at risk, and/or undermine the potential ‘gross’ nature of their actions. In a nutshell, the following criteria support the grounds for suspension of an employee: where the welfare or safety of a child is potentially at risk, where the safety of other employees is at risk, where there is a risk the alleged action may be repeated, where there is serious risk of damage to the reputation of the company.

Do I need to put a decision to suspend in writing? Disciplinary

Yes, but you may suspend someone verbally first, and follow up as soon as possible with a letter outlining the reason the person has been suspended, their entitlement to full pay, and the procedures that will occur while they are on suspension (Disciplinary).

What can I do I protect the reputation of the employee I have suspended? Disciplinary

It is important to be mindful of a person’s personal and professional reputation during each stage of the process, considering an allegation is an allegation and not necessary a truth. You can ask the accuser, any witnesses, or anyone else connected to the alleged incident, to sign a confidentiality agreement. A breach of this may warrant disciplinary action against another employee. The suspended employee can be reassured that this confidentiality agreements have been signed. An employer may offer the explanation for their absence as ‘leave for personal reasons’ to protect the employee’s reputation.

How long does a Disciplinary Process normally take? Disciplinary

While every effort should be made to conclude the process as quickly as possible, it is a process that cannot and should not be rushed. The length of time the process takes also depends on factors such as the number and severity of the allegations made against a person.

Who should carry out a Disciplinary process? Disciplinary

It is best practice also to ensure that a different person, each of whom is as impartial as possible, conducts each part of the 3-part process separately (investigation, disciplinary, potential appeal) to ensure a fair, independent, and balanced process for the employee. An employer or manager may conduct any of the stages, however, it is not best practice for the same person to conduct more than one stage. Canavan Byrne can assist with any or all stages of a Disciplinary Process and have a team of experienced Officers to conduct the required stages.

Who should attend a Disciplinary meeting? Disciplinary

The person appointed to conduct the meeting (Investigating Officer, Disciplinary Officer etc) will attend (sometimes with a note taker), along with the person accused (Respondent) and their representative of choice, should they choose to attend with one. An investigating Officer may choose to meet separately with the accuser (Complainant), or as part of the Investigating meeting itself, and with other witnesses or relevant persons for the purpose of gaining information or insight.

What happens during an Investigation Meeting? Disciplinary

Before the meeting, the appointed investigating Officer should have received a copy of the allegation(s) and any relevant documentation or evidence gathered during the preliminary or ‘fact-finding’ stage. An investigating Officer may have requested further relevant documentation (such as relevant policies) to assist them with their inquiries and they will have prepared some questions to pose to the Respondent during the meeting. The meeting offers the Respondent the opportunity to respond to the allegations, to answer the questions posed, and to offer any relevant information, context, explanation, or defence. The notes of the meeting are sent to the Respondent, and they will be asked to confirm that these represent an accurate account of the meeting. The Investigating Officer will then write an Outcome Report based on the meeting held and the evidence provided, and this will be furnished to the employer. In this report, it will be outlined whether the allegations have been founded, part-founded or unfounded. The Respondent will receive a copy of the report also.

What happens after the Investigation Meeting? Disciplinary

If the allegations are founded, or part-founded, a move to the Disciplinary stage should occur. This stage should be conducted by someone other than the person who conducted the investigation, to ensure a fully fair and impartial process for the employee. A Disciplinary Officer should be appointed, furnished with the investigation Outcome Report, and the employee is then invited to attend an additional meeting (with a representative of choice should they wish to attend with representation) with the Disciplinary Officer.

What happens in a Disciplinary Meeting? Disciplinary

Similar to the Investigation Meeting, which should take place before a Disciplinary meeting, the Respondent is granted the opportunity to bring any further relevant information to the Disciplinary Officer and to respond to the Investigation Outcome Report. The Disciplinary Officer may have some pre-prepared questions to pose to the Respondent, however, this should be only for the purpose of gaining further information or clarification following the investigation. The notes of the meeting are sent to the Respondent, and they will be asked to confirm that these represent an accurate account of the meeting. The Disciplinary Officer will then write an Outcome Report, and this will be furnished to the employer.

It is the role of the Disciplinary Officer to decide, based on the Investigation Outcome Report, and the information gathered from the Disciplinary meeting, whether a sanction is recommended to be implemented, and if so, which sanction may be appropriate to implement. This is made as a recommendation to the employer. The Respondent also receives a copy of the outcome report and an accompanying letter to state that the recommendation will or will not be implemented. An employee must be made aware of their right to lodge an internal appeal following any sanction that may be implemented.

What kind of sanctions might be recommended? Disciplinary

Sanctions vary from a Verbal Warning (a record of this is placed on file), a First Written Warning, a Final Written Warning, or a Dismissal.

How do sanctions affect employees in their position? Disciplinary

A sanction (other than that of a dismissal) means an employee can continue as usual in work with the sanction confidentiality held on their file for the period outlined in the company’s Disciplinary Policy (example for 12 months). While an employee may be subject to additional supervision or review during the period a sanction is on file, after the period has expired, the sanction is removed and should hold no bearing on the employee’s role or responsibilities.

How long does an employee have to lodge an Appeal of a sanction? Disciplinary

The time frame permitted for an employee to lodge an internal appeal against a sanction implemented should be outlined in the company’s Disciplinary Policy. If not, this should be communicated to the Disciplinary Officer to enable an agreement on a timeframe to take place and for this to feature in the report.

What happens if the employee lodges an Appeal? Disciplinary

An appeal must be submitted in writing by the employee and must outline the grounds for the Appeal. An Appeals Hearing Officer must be appointed (ideally a person who has not conducted any previous stage of the process and is fully impartial/independent). The employee is invited to attend an Appeals Hearing Meeting and relay the grounds for their appeal of the sanction implemented. An Appeals Hearing Officer will have received all relevant documentation relating to the Disciplinary Process and will review this, along with the information gathered from the Appeals Hearing Meeting. The Appeals Hearing Officer will provide the individual who has appealed the sanction with summary notes of that meeting and ask that they confirm that these represent an accurate account of the meeting. The Appeals Hearing Officer will then write an Outcome Report determining whether the internal Appeal is upheld or not. Canavan Byrne can assist with an Appeal process by providing advice, support, and/or a fully independent Appeal’s Hearing Officer to hear the Appeal.

Am I obliged to tell a new employer that someone has been subject to a disciplinary? Disciplinary

No. Unless an employee poses a direct serious risk to the health, safety and welfare of a child or to another adult, an employer is expected to maintain strict confidentiality in relation to internal Disciplinary Procedures and their outcomes.

Do I have to give a reference to an employee who has left the company? Disciplinary

An employer is not legally obliged to provide a reference to an employee who has left employment. However, in the Early years sector, a reference from a previous employer holds significant weight and can often be a reliant factor to securing a new position. An employer who decides to offer a reference also owes a duty of care not only to the employee but also to a new employer to provide accurate and fair information about the prospective employee.

It is always worth remembering that anything expressed in a reference may be viewed also by the employee. Therefore, inclusion of factual information (rather than expressions of opinion) may be a better consideration for employers who are in any way hesitant or reluctant to provide a reference.

What do I need to do if an employee makes a complaint? Disciplinary

Depending on the nature of the complaint, an employer should request that the employee files a grievance (a formal complaint in writing with as much detail as possible). The exception to this is where an allegation of bullying or harassment is made by one employee against another. In this case, a formal grievance is not necessarily required before an employer takes action to attempt to resolve any issues or allegations informally. In the case where a grievance is lodged, an employer should afford an employee an opportunity for the grievance to be formally heard by inviting them to attend a meeting (with a representative of choice should they choose to attend with one) with an impartial Grievance Hearing Officer. The role of the Grievance Hearing Officer is to review the circumstances surrounding the Grievance and to decide whether the employee has grounds for the grievance. A series of recommendations may be issued by the Grievance Hearing Officer to the employer, or an investigation into allegations made by an employee may be warranted by the Grievance. Canavan Byrne can assist with a Grievance Process by providing advice, support, and/or a fully independent Grievance Hearing Officer.

How do I decide if redundancy is relevant to my situation? Redundancies

A redundancy occurs when a person (or group of people’s) role(s) ceases to exist due to a closure of the company, a restructuring or reduction of company staff due to a lack of available work, or a financial position that means roles can no longer be sustained.

What type of redundancy situations might arise? Redundancies

A ‘collective redundancy’ means that those eligible for redundancy are a group of employees (for example, 5 employees where between 21 and 49 are employed).

A ‘mandatory redundancy’ (also known as ‘compulsory redundancy’) means that a redundancy is imminent and not optional.

A ‘voluntary redundancy’ means that a company wishes to make certain reductions and have requested that employees eligible for redundancy apply for it based on their interest in being made redundant. An interest in redundancy may depend on the number of years a person has been employed (which increases their entitlement) or personal circumstances where redundancy may be more financially advantageous to a person than, for example, a resignation.

How do I choose who is eligible for redundancy? Redundancies

A person’s specific role must cease to exist, and that person cannot be replaced by another employee in the same role. Where several people are employed in the same role and only one or more positions are required to be made redundant, employers must approach the selection process with extreme care to help avoid an Unfair Dismissal claim. Canavan Byrne can assist with the selection process for a Redundancy scenario.

I have 5 employees working in the same role, but I only need 4. What can I do to ensure a fair selection? Redundancies

Depending on the circumstances, employers may apply a ‘Last-in First-out’ (LIFO) selection or develop a detailed Selection Matrix (employees are scored on various levels of required skills/competencies, overall performance, punctuality etc). Employers may also conduct an interview process to reassess skills and suitability. It is essential for employers to consider custom and practice (the method of selection that was applied previously if redundancy arose before) and any pre-outlined selection process in the company’s policies, contracts of employment and/or the employee handbook. The overall aim is to ensure that any selection process applied is completely objective and does not place any employee at an unnecessary disadvantage.

How much notice do I need to give my employees around being made redundant? Redundancies

While as much notice as possible is recommended, a minimum of 2 weeks’ notice is required to be given to employees who have been employed for between 2-5 years, 4 weeks for those employed between 5 – 10 years, 6 weeks for those in employment for between 10 – 15 years and 8 weeks for those employed for 15 years or more.

Do I need to put notice of redundancy in writing to employees? Redundancies

Yes, a clear paper trail of correspondence is required to avoid any misunderstandings or cross communication. Furthermore, employees should be granted the opportunity to respond and consult with an assigned person should they have any questions, comments, or concerns in relation to the process. Canavan Byrne can assist with the correspondence required and the consultation process for employees in a Redundancy situation.

Can I offer an employee an alternative role instead of redundancy? Redundancies

Yes, however, it must be offered as an alternative only. An employee should be permitted to ‘trial’ the new role for a 4-week period, after which they can decide whether they wish to continue in employment or opt for the redundancy. It is important an employee clearly understands this and jointly signs off on this agreement with the employer. Canavan Byrne can assist with the drafting of agreements in this scenario.

How do I calculate how much redundancy payment an employee is entitled to? Redundancies

A statutory redundancy payment is calculated on the number of years a person has been in employment with the company they are being made redundant from at 2 weeks earnings for each 1 year of service in the company (from the age of 16 years +) plus 1 additional week’s earnings. There is a maximum limit of €600 per week when calculating redundancy (€31,200 per year). An employee must have been employed for at least 104 consecutive weeks to be eligible (this period includes protected leave periods such as certified sick leave, parental leave, paternity leave, maternity leave, carer’s leave, adoptive leave, annual leave, lay off, or any agreed absence).

For example, Marian has worked for 5 years and earns €400 per week.

2 weeks earnings = €800 X 5 years + €400 = €4,400 statutory redundancy entitlement.

What about the time an employee was not in work? Redundancies

An employer must count ‘reckonable service’ in their calculation but do not need to include ‘non-reckonable service’ in the calculation of a redundancy payment. For example:

Reckonable Service Periods include:

• Annual Leave
• Sick Leave lasting less than 26 weeks
• Leave due to injury at work of less than 52 weeks
• Agreed absence from work (example a career break)
• Maternity/Parental/Paternity/Carer’s/Adoptive Leave

Non-Reckonable Service Periods include (in the last 3 years only):

• Any period over 52 consecutive weeks where you were off work due to an injury at work
• Any period over 26 consecutive weeks where you were off work due to illness
• Any period on strike
• Any period of lay off from work.

Can I pay an employee more than their statutory entitlement? Redundancies

Yes, this is at the discretion of the employer.

Can I pay employees who have not worked the required 104 weeks in the company? Redundancies

Yes, this is at the discretion of the employer.

What do I do if I think my company cannot afford to make a redundancy payment? Redundancies

It is up to the employer to make statutory redundancy payments in the first instance, however, where a company has entered insolvency, it can apply for Redundancy Payment Scheme (Welfare Partners). An employer’s guide is available on www.gov.ie. Employers must be aware that failure to pay a statutory redundancy payment to eligible employees when the company is in a financial position to do so may result in a claim made against the employer with the Workplace Relations Commission.

When do I need to give employees a contract? Contracts

There are massive benefits both for the employer and the employee in having a contract in place as a dependable point of reference. Employers are required legally to issue a written statement of terms within the first five days of commencement and then issue a  contract within the first month of commencement. 

What should the Written Statement of Terms contain? Contracts

The Written Statement of Terms must contain the full name of the employer and the employee, the address of the employer or the place of work, the expected duration of the contract itself, the rate and method of calculation of pay and finally the number of hours expected to be worked on average per day and per week

What is a Permanent Contract? Contracts

A permanent contract, otherwise known as a contract of indefinite duration, can be issues to an employee for either full time or part time work. This like any other contract type should be issued within the first month of employment.

A part time employee is someone who works less hours than a comparable full-time employee doing the same type of work.

What is a Fixed-Term Contract? Contracts

A Fixed-Term contract is a contract with a specified start and end date, or where employment is based on the completion of a specific task or project. The continuity of a Fixed-Term contract may also be contingent on a particular condition, such as the availability of continued funding from an external source. The combined duration of a Fixed-Term contract cannot exceed four years. After this you are considered as having a contract of indefinite duration, otherwise known as a permanent contract.

What is a Specific-Purpose Contract? Contracts

A Specific-Purpose contract is one where an end date may not be known or specified, for example an employee who is covering someone else’s protected leave, such as Maternity or Certified sick leave. It is vital that a Specific-Purpose contract sets out exactly what it should and actually specifies what the purpose of the contract is, this should help avoid any confusion for employees and or any difficulties for employers.

What role can HR play in achieving Gender Equality? Recruitment Selection

Employers have a duty to challenge gender stereotypes and gender discrimination, should it arise either directly or indirectly within their workplace. The prevention of gender inequality requires the company as a whole to commit fully to calling out bias and inequality. This can start with a conversation, a policy, or a memo. This can extend to adopting an awareness of how your company is presented visually, either through your website or social media, how it is branded and how your services and its vacancies are advertised. It can also mean adopting and awareness of our own sub-conscious bias through the recruitment and interviewing process. Ensuring there are gender balanced interview panels where possible, teams of managements or Board of Directors. Ensuring equal consideration is given to each potential applicant regardless of their gender.
 

 What can I do?
  

Employers, Directors and management teams can and should lead by example in accelerating gender equality within the workplace, by creating awareness of bias, challenging it as it arises, adopting a zero-tolerance approach to it, showcasing and celebrating the achievements of women both inside and outside of their organisation and exercising the choices they have to achieve gender equality within their own company.

 
GENDER PAY GAP INFORMATION ACT 2021

The Gender Pay Gap Information Act 2021 was signed into law last year, but regulations prescribing the details and requirements associated with the reporting of the information are still awaited. On International Women's Day, 8 March 2022, the Minister for Children, Equality, Diversity, Integration and Youth announced some details of what the regulations will contain.

The key points to note from the announcement are as follows:

• The Minister stated that the regulations will be published in the coming weeks
• Employers with 250 or more employees will choose a 'Snapshot' date (the relevant date for the payroll data) in June 2022 and will be required to report their gender pay gap (GPG) on the same date in December 2022

While further details are still awaited, the announcement indicated the following information will be required to be reported:

• The mean and median hourly wage gap. The mean calculation will reflect the entire pay range and the median will exclude the impact of unusually high earners.
• Data on bonus pay
• The mean and median pay gaps for part-time employees and for employees on temporary contracts
• The proportions of male and female employees in the lower, lower middle, upper middle and upper quartile pay bands

As outlined in the Gender Pay Gap information Act 2021 the employers in scope will be required to publish a statement setting out, in their opinion, the reasons for their GPG and the measures (if any) being taken or proposed to be taken to eliminate or reduce their GPG. Reporting is due to commence in December 2022.

What do I need to know about Retirement? Contracts

What do I need to know about Retirement?

Currently a person who is eligible to receive pension payments from age 66, can also continue to work and receive income. An employee who wishes to work beyond the age of retirement and the employer does not think that is a good idea, the employer must be able to justify the decision not to continue to employ that individual. The decision not to continue to employ may be based on grounds of Health and Safety in which case a thorough risk assessment should be conducted and medical confirmation can be requested.

 What grounds are there NOT to allow employment to continue?

Should a claim for age discrimination be pursued buy an employee, the WRC may consider Health and Safety, the preservation of personal professional dignity among older employees, intergenerational balance and fairness, succession planning or a balanced age structure within the workforce, as legitimate aims by an employer who may not decide to employ someone past their retirement age.

 What do I need to do if I have an employee nearing retirement age?

The Employment Acts prohibit discrimination on a number of brands, one of which is age, so it is vital that employers communicate with their employees who may be nearing retirement age, in order to establish whether they intend to retire or continue in employment. Any discrepancies then between an employee’s wishes and an employer’s opinion or preference can be dealt with in good time to help avoid any difficulty or conflict.

Working beyond 66 can be reviewed in line with fitness to work, conditions of employment and if required referral to an independent medical advisor, which Management reserves the right to do. An employee who has reached retirement age or wishes to retire should inform the employer of the intended date of retirement in writing.  Working beyond 66 years of age will be with prior agreement of the Employer and may be on a fixed term contract basis. 

What is the new Workplace Pension Scheme (Automatic Enrolment Retirement Savings System) Contracts

• Under Auto Enrolment employees will have access to a workplace pension savings scheme which is co-funded by their employer and the State. 

 

• people will have their pension savings matched on a one-for-one basis by the employer. The State will also provide a top-up of €1 for every €3 saved by the worker. This means that for every €3 saved by the employee, a further €4 will be invested by the employer and the State combined.

 Phased implementation

•  all employees not already in an occupational pension scheme, aged between 23 and 60 and earning over €20,000 across all of their employments, will be automatically enrolled
• with the system set up by 2024 for employee enrolments in 2025

 Saving supports

• matching contributions will be made by employers to those contributions made by employees up to a maximum of €80,000 of earnings. 

Choice

• the system will be voluntary but will operate on an ‘opt-out; rather than an ‘opt-in’ basis
• eligible employees will be automatically enrolled/ ‘opted-in’ but will have the choice after six months participation to opt-out or suspend participation

Simplicity
Administrative costs and burdens are to be kept to an absolute minimum for both employers and employees through the establishment of a Central Processing Authority (CPA) to administer the system

What is the Statutory Sick Pay Entitlement? Leave Management

Eligible Employees are entitled to paid sick leave for up to 5 days in 2024. The rate of payment for statutory sick leave is 70% of normal wages to be paid by employers (up to a maximum €110 per day).

Regarding the Sick Leave Act, do the sick days have to be taken together (consecutively)? Leave Management

Under the Act, days can be consecutive or non-consecutive.

I have a staff member who works part-time on a term time contract from September to June. What entitlement does she have in relation to the Sick Leave Act? Leave Management

The Act applies to both part-time and full-time employees. Part-time employees have the same entitlement.

Regarding the Sick Leave Act, what happens if my employee is on probation? Leave Management

Probation has no impact on the entitlement. However, employees must have completed 13 weeks continuous service before the Act applies. 

Are these statutory sick days of the Sick Leave Act certified or uncertified? Leave Management

An employee seeking to rely on the Act must provide their employer with a certificate from a registered medical practitioner outlining that the employee is unfit to work due to injury or illness. Once the entitlement to statutory sick leave from the employer ends, the employee may qualify for illness benefit.

As an employer do I need to keep a record of the sick leave taken? Leave Management

Employers are obliged to keep records of Statutory Sick Leave (including the dates and times of leave, rate of payment and the amount of service of the applicable Employee) for a period of four years. Failure to comply with the record-keeping requirement may result in a fine of up to €2,500.

I currently pay my staff for 10 sick days. Can I now introduce the Sick Leave Act Scheme? Leave Management

No, not without negotiation and agreement if it disadvantages the employee and their current entitlement is better. The introduction of this scheme cannot disadvantage an employee. It is prudent to visit the Contract of Employment to ensure the proper entitlement is given to employees. 

Are there penalties for non-compliance with the Sick Leave Act? Leave Management

The penalty for not complying with record-keeping requirements is a fine up to €2,500.

I cannot afford to pay this Sick Leave entitlement. Do I have to? Leave Management

If an employer is experiencing severe financial difficulties, they may apply to the Labour Court for an exemption.

If an employee wants to complain about an employer with regard to the Sick Leave Act entitlement, what can they do? Leave Management

We always recommend that any grievance against an employer is first dealt with under the internal grievance policy. Where an employer has not complied with the Act, an employee can make a complaint to the WRC within 6 months. A successful complaint may result in an award of compensation of up to 20 week’s pay.

When was Statutory Sick Pay introduced in Ireland? Leave Management

This took effect on  1st January 2023, meaning all employers in Ireland are legally obliged to pay the minimum statutory sick leave payments to their staff from this date, once they have been employed for a minimum of 13 consecutive weeks. 

Regarding Statutory Sick Pay, are employees required to provide a medical certificate to receive sick pay? Leave Management

Employees will need to provide their employer with a medical certificate to avail of the Statutory Sick Pay (70% of their normal wage, capped at €110 per day).  The statutory payment should be made without any delay by employers, but it is yet unclear whether an employer can withhold payment should there be a delay in receiving the medical certificate.  It is expected that the provision of electronic certificates may help address this issue. 

I already have a Sick Pay scheme in place. How will the Statutory Sick Pay scheme impact me? Leave Management

Should a contractual Sick Pay scheme already be in place that exceeds the statutory one ( 5 in year 2024, 7 days in 2025 and 10 days in 2026) employers should continue to implement it and reference in their policy/handbook that contractual sick pay is inclusive of their statutory entitlements.

What happens if an employer does not comply with the Sick Leave Act? Leave Management

If an employer does not comply employees have the right to take a complaint to the WRC if they are not provided with a compliant Company sick pay scheme. The penalty for non-compliance is up to four weeks’ full pay on top of your unpaid sick pay. The Act also provides protection against penalisation for any Employee exercising their right to avail of Statutory Sick Pay.

What is the Sick Leave Act? Leave Management

The Sick Leave Act was signed into law in July 2022 and came into effect on the 1st of January 2023. The Act legislates for a statutory sick pay scheme for all Employees in Ireland, phased in over a four-year period. 

What is Statutory Sick Pay? Leave Management

Statutory Sick Pay became law in Ireland in 2022. The entitlement to Statutory Sick Pay commenced on 1 January 2023. The legislation means that Employers must provide a minimum number of paid sick days every year.

How does an Employee become entitled to Statutory Sick Pay? Leave Management

For an employee to be entitled to paid sick leave under the legislation, an Employee must be working for the Employer for at least 13 continuous weeks. An Employee will also need to be certified by a GP as unfit to work. Where an employee’s employment terminates and that same employee returns to the same employer within 26 weeks after the date of cessation, the initial period of employment can be considered as continuous service for the purpose of gaining an entitlement to statutory sick pay.

What is the employee paid when on sick leave? What are the sick leave rates? Leave Management

Employers are obliged to pay 70% of an Employee’s gross normal earnings (up to a maximum of €110 per day). 

What is the entitlement for an employee who commences employment mid-way through a year. Leave Management

Employees who commence employment mid-year are still entitled to the full statutory sick leave once they have accrued the minimum level of service of 13 continuous weeks. This is regardless of whether they have already been the beneficiary of statutory sick pay from a previous Employer.

Is the sick leave allowance applied each time the employee is absent due to illness? Leave Management

No. the entitlement is for the number of statutory sick days throughout the calendar year.  Statutory sick leave days may be consecutive days or non-consecutive days. For example, in 2024 the entitlement is for 5 days throughout the full year. 

Does this statutory sick leave entitlement apply to fixed term contracts/ term time or temporary contracts? Leave Management

Yes, all employees are entitled to benefit from the full statutory sick leave after accrual of 13 weeks service. Under the Protection of Employees (Fixed-Term Work) Act 2003, Employers cannot treat a fixed-term worker less favourably than a comparable permanent Employee, unless the reasons can be objectively justified.

What happens when the statutory sick leave is used fully? Leave Management

Employees who exhaust the sick leave allowance may qualify for illness benefit from the Department of Employment Affairs and Social Protection, subject to PRSI contributions.

What happens if an employee’s contractual sick leave that exceeds of the statutory scheme? Leave Management

If the employer has a contractual sick pay scheme in place that exceeds the entitlements of the Act i.e., allows Employees to take more than the statutory days paid sick leave per year/employees do not need to submit a medical cert to be paid/sick leave is paid at 100% rather than a percentage, there is no need to change the contractual sick leave scheme. Employees must retain their contractual allowance. 

As an employer I have an employee out on certified sick leave, when do I start to apply statutory sick pay? Leave Management

If an employee is out on certified sick leave, whether consecutive or non-consecutive days,  the employer will automatically from the first day of absence, apply the Statutory Sick Pay entitlement, unless otherwise notified by the employee.

Domestic Violence Leave Leave Management

What is domestic violence leave?

Domestic violence leave is provided under a new section 13AA in the Parental Leave Acts 1998 to 2023 (“Parental Leave Acts”), inserted by the Work Life Balance and Miscellaneous Provisions Act 2023.
The leave entitlement came into effect on the 27 November 2023 and provides for up to five days of paid leave over a period of 12 months to employees affected by domestic violence.

 

What is domestic violence?

Under the Act, domestic violence means violence, or threat of violence, including sexual violence and acts of coercive control committed against an employee or a relevant person by another person who:

(a) is the spouse or civil partner of the employee or relevant person,

(b) is the cohabitant of the employee or relevant person,

(c) is or was in an intimate relationship with the employee or relevant person, or

(d) is a child of the employee or relevant person who is of full age and is not, in relation to the employee or relevant person, a dependent person

The guidance published by Women’s Aid states that domestic violence and abuse occurs when a person tries to gain and maintain power and control over their current or former partner, or in some cases a family member, by using a pattern of intimidation, isolation, manipulation, coercion and assaults. Domestic abuse takes many forms. It can be physical, emotional, sexual, and economic, including coercive control. Abuse rarely takes one form; perpetrators of abuse use different tactics as part of a larger pattern of controlling and abusive behaviour. Importantly, physical abuse does not always have to be a factor in abusive relationships.

The guidance published by Women’s Aid provides detailed guidance regarding the varied forms of domestic violence and abuse.

 

Who can avail of domestic violence leave?

Any employee directly experiencing domestic violence or abuse may avail of domestic violence leave. In addition, where an employee is supporting a ‘relevant person’ who is being affected by domestic violence, they may also avail of domestic violence leave.

 

 

What is the definition of a ‘relevant person’?

Relevant person means, in relation to an employee:

(a) the spouse or civil partner of the employee,

(b) the cohabitant of the employee,

(c) a person with whom the employee is in an intimate relationship,

(d) a child of the employee who has not attained full age, or

(e) a person who, in relation to the employee, is a dependent person;

 

What is the purpose of the leave?

The purpose of the leave is to enable an employee who is subjected to domestic violence, or an employee supporting a ‘relevant person’ to do any of the following:

1.Seek medical attention;

2.Obtain services from a victim services organisation;

3.Obtain psychological or other professional counselling;

4.Relocate temporarily or permanently;

5.Obtain a court order such as a safety order, barring order or protection order;

6.Seek advice or assistance from a legal practitioner;

7.Seek assistance from the Garda Síochána;

8.Seek or obtain any other relevant services.

 

Is there a service requirement for domestic violence leave?

There is no service requirement for an employee to avail of domestic violence leave.

 

How should an employee apply for domestic violence leave?

Organisations should consider the appointment of a designated person within the organisation who would be an appropriate point of contact for any domestic violence leave requests. This person should be appropriately trained to ensure that they are well-placed to respond effectively to employees’ disclosures and queries in respect of the policy. Depending on the size or structure of the organisation, such a role may naturally fall to anyone who responds to employee wellbeing concerns generally such as people managers, HR representatives or the business owner.

 

What support should be provided to the designated person if one is appointed?

The guidance provides that employers should, in line with their general duty of care to employees, consider how the designated person might be supported in their role. Where, for example, a designated person does not have dedicated time to support employees, the guidance suggests that consideration be given to ensuring they are given sufficient time to adequately support an affected employee. Designated persons should also be given information on how they can access support for themselves and be facilitated to do so. Support may, for example, be provided through the Women’s Aid helpline or an Employee Assistance Programme, where available.

 

Is there a notice requirement to avail of the leave?

While advance notice of the leave is preferable, in certain circumstances, this may not be possible. However, an employee should notify their employer of their intention to take or remain on domestic violence or other leave for this purpose as soon as reasonably practicable. This notice should specify the dates on which domestic violence leave was/will be taken.

 

What happens if an employee takes part of a day of domestic violence leave?

Where an employee is absent from work for part of a day, it will be deemed to be one day of domestic violence leave.

 

What should an employee be paid when availing of domestic violence leave?

An employee is entitled to receive his/her full pay for the period of domestic violence leave.

Pay will be calculated as follows:

·If the employee’s pay is calculated by reference to (i) a fixed wage, salary, allowance or bonus for each week, month or any other fixed period, or (ii) a fixed hourly or other time rate for a set number of hours, the gross amount payable in respect of a day of domestic violence leave shall be 100% of the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime or commission) paid to the employee in respect of the normal daily hours last worked by him/her before the day on which he/she was absent.

·If the employee’s pay is calculated by reference to a fixed hourly or other time rate for a variable number of hours, the gross amount payable in respect of a day of domestic violence leave shall be 100% of the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime or commission) that would have been payable to the employee had he/she worked on that day.

·If the employee’s pay is not calculated by reference to any of the matters referred to in paragraphs (a) or (b), the gross amount payable in respect of any day of domestic violence leave shall be the sum that is equal to 100% of the average hourly rate of pay (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any overtime or commission) of the employee, calculated over –

(i) where the employee has worked for a period of 13 weeks or more in the employment concerned –

(I) the period of 13 weeks ending immediately before the day on which he or she was absent on domestic violence leave, or

(II) where the employee has not worked for a consecutive period of 13 weeks ending immediately before the domestic violence leave, the period of 13 weeks that is the aggregate of the periods that, on that day, are the periods most recently worked by him or her, or

 

(ii) where the employee has worked for a period of less than 13 weeks in the employment concerned, the period during which the employee has worked ending immediately before the first day of domestic violence leave,

 

multiplied by the number of hours that the employee was due to work on the day on which he or she was absent on domestic violence leave.

 

Does annual leave and public holidays continue to accrue during domestic violence leave?

Annual leave and public holidays will continue to accrue during domestic violence leave. Employees on domestic violence leave are regarded for all purposes relating to his/her employment as still working for the employer and none of his/her rights are to be affected by the leave. Absence on domestic violence leave shall not be treated as part of any other leave from employment (e.g. parental leave, sick leave, annual leave, force majeure leave etc).

 

Can an employer retain records of domestic violence leave?

The Act requires records of domestic violence leave to be kept for a period of three years. Records should be stored securely and kept strictly confidential. To maintain confidentiality, it is recommended for an employer to consider coding the leave in a discreet manner. An employer may also retain records of an agreed workplace safety plan or any details of abuse occurring in/near the workplace or using workplace equipment.

 

Can an employer seek proof of an employee’s eligibility to domestic violence leave?

There is no provision within the legislation to seek proof of an employee’s eligibility to domestic violence leave.

 

How should an employer address a disclosure of domestic violence?

Confidentiality and an employee-led response are highlighted in the guidance as being key principles to a safe and effective employer response. The guidance provides that the employer’s response should respect the affected employee’s decisions, prioritise confidentiality and demonstrate genuine concern with a willingness to listen without judgment.

The guidance states that an employer may respond pro-actively or reactively. However, if responding pro-actively, an employer must respect an employee’s choice not to disclose their situation. In such circumstances, the guidance suggests that the designated person, if one is appointed, should create a supportive environment that allows the employee to disclose when they are comfortable, without applying undue pressure.

The guidance provides a detailed list of do’s and don’ts in respect of responding to a disclosure of domestic violence, together with some examples of verbal responses that can be used to respond to the initial disclosure.

 

What happens after a disclosure has been received?

The guidance recommends that the process which should follow a disclosure should include:

·Keeping records related to the disclosure and/or any support measures requested (note the key principle of confidentiality with regard to any records kept)

·Safety and wellbeing planning

·Agreeing frequency and method of communication with the affected employee about the issue following the disclosure

The guidance makes it clear that employers should focus on ensuring that the employee is referred to the necessary supports. Should the employee require a level of support that the organisational policy does not offer, the employer should ensure that the employee has access to the information they need to seek out the support required. Crucially, it is not the role of anyone in the workplace to deal with the abuse itself. The workplace response should focus on addressing the impacts of domestic violence on work, supporting the affected employee in line with the relevant policies and signposting them to specialist services.

 

How can an employer maintain confidentiality following receipt of a disclosure?

The guidance makes it clear that any information relating to domestic violence must be held in strict confidentiality.

Employers should, therefore, consider confidentiality with respect to:

1.Sharing information with others

·Information must be treated sensitively and only shared with those who need to know for the purposes of implementing a workplace safety plan or administering leave. Furthermore, employers should consider whether they can achieve the desired outcome without sharing personal information.

 

1.Retaining records following a disclosure

·The guidance provides that the employer may retain records relating to:

·Details of agreed workplace safety plan

·Administrative data such as approval of domestic violence leave

·Details of abuse occurring in/near the workplace or using workplace equipment

·Where these records are retained on personnel files, consideration should be given to how best to ensure limited access to such information. Access should be limited to a minimal number of people who are in a position of high trust.

·Employers must also ensure that adequate security measures are applied to relevant records.

·Unauthorised disclosure may lead to disciplinary action in accordance with the company’s disciplinary procedures.

 

1.Administration of domestic violence leave

·Domestic violence leave should be coded in a discreet way. The guidance notes that some employers identify domestic violence leave as “special leave” where other forms of leave also fall within this category. Employers are encouraged to speak to SFA HR support with regards to the coding of domestic violence leave.

 

1.Documenting domestic violence leave on payslips

·Employers should not make any reference to domestic violence on payslips. As stated above, employees on domestic violence leave are entitled to full pay. This enables employers to record the leave as ordinary hours.

·Where payroll is outsourced, it is vital that domestic violence leave is not communicated as such to a payroll provider.

 

Are there any limits to confidentiality in these circumstances?

The policy template identifies 3 scenarios which create limits to confidentiality:

1.Where there is a requirement under law

2.When ordered by the court

3.Where it is necessary to share the information to protect the safety of employees and/or the public. It should be noted that a high threshold will apply to this limitation, and employers should take specific advice before disclosing information in such circumstances.

 

How should an employer address a disclosure to a colleague?

The guidance provides that a co-worker who has received a disclosure should be encouraged to signpost the affected employee to the resources and support channels available.

 

How should an employer respond to a disclosure where the affected employee is working from home?

The guidance provides that an employer should consult with a hybrid or remote worker on their safety and wellbeing needs regarding their work setting following a disclosure. Where employees are expected to work from home all or some of the time, it is recommended that an option to work on-site is available, if this is possible.

Employers are advised to exercise caution regarding any method of communication in these circumstances and might, where appropriate, consider an in-person meeting in a safe location.

 

How should an employer create an environment where employees are encouraged to make disclosures?

The guidance encourages employers to consider how they will create an environment which encourages affected employees make disclosures in the workplace. The guidance suggests such actions as visible senior leadership commitment, practical support options, training and awareness-raising and ensuring privacy and confidentiality.

 

What additional considerations apply where both parties are employed in the same organisation?

The guidance states that in circumstances where the disclosing employee and the employee allegedly perpetrating domestic violence work in the same organisation, the employer should consult with the disclosing employee in consideration of their safety and wellbeing while recognising that all individuals have a right to fair process and procedure. On balance, disclosing employees’ needs and safety must be prioritised.

There are complex issues for employers to consider in this scenario, such as natural justice. Therefore, it is advisable for member companies to seek advice from SFA HR support if such a situation arises.

 

Does the Act contain any anti-penalisation provisions in respect of domestic violence leave?

Yes, the Act provides that an employer must not penalise an employee for exercising or proposing to exercise his/her entitlement to domestic violence leave. Penalisation in this regard includes:

·Dismissal of the employee

·Unfair treatment of the employee, including selection for redundancy

·An unfavourable change in the conditions of the employee

 

Are employers required to put in place a Domestic Violence Leave Policy?

There is no legal obligation on employers to put in place a domestic violence leave policy. However, the guidance recommends that employers put in place a policy which provides clarity on the process for accessing entitlements. This will assist in encouraging employees to raise a concern. A policy template is available at www.dvatwork.ie.

 

SPECIALIST DOMESTIC VIOLENCE AND ABUSE SERVICES

Women’s Aid Women’s Aid operates the 24hr National Freephone Helpline for victims-survivors of domestic violence - 1800 341 900. 

Support can also be accessed through the Instant Messaging Support Service, available on the relevant websites. 

www.womensaid.ie 

www.toointoyou.ie 

 

Men’s Development Network Men’s Development Network operates the Male Advice Line, the national Freephone Helpline offering confidential advice and support to male victims-survivors of domestic abuse 1800 816 588 and www.mensnetwork.ie 

 

Local services 

There are specialist domestic abuse services located in towns right across Ireland. Details of your local service can be accessed through these websites. 

www.safeireland.ie 

www.stillhere.ie 

www.womensaid.ie/get-help/support-services/find-support-locally/

 

Other services

Dublin Rape Crisis Centre National Sexual Violence 24hr Helpline: 1800 77 8888 www.drcc.ie 

LGBT Ireland National LGBT Helpline: 1800 929 539 www.lgbt.ie 

Local rape crisis centres www.rapecrisishelp.ie 

An Garda Síochána 112 or 999 

 

Our leave year runs from January to December. Can I base my calculations on that leave year? Leave Management

Doing that would not be compliant with the law. The “leave year” is defined by section 2 of the Organisation of Working Time Act 1997 as running from 1 April to 31 March. Many employers operate different leave years, commonly the calendar year. Until now, in practice, using such a non-compliant leave year rarely gave rise to any significant breaches of the Act. However, there is a greater chance of a significant breach of the new provisions if an employer does not calculate the accrued entitlements of an employee returning from sick leave on the basis of the statutory leave year. Even if employers continue to operate a calendar-based leave year, they should use the statutory leave year to calculate the annual leave of employees returning from long-term sick leave.

How do I calculate the entitlements of an employee returning from a long period of sick leave? Leave Management

An employee returning from long-term sick leave will have either two or three distinct “bundles” of annual leave, each of which must be taken before a certain deadline. The following steps can be followed to assess the entitlements of an employee who has been on a lengthy period of certified sick leave.

(a) No calculation is necessary until the period of sick leave comes to an end. The following calculations are made when the employee’s period of sick leave ends.

(b) Ignore any leave year which is not one of: the current leave year; the last leave year and the year before the last leave year. The employee has no entitlement in respect of any leave year prior to those years.

(c) In each case, the “leave year” is the period from 1 April to 31 March. It is not the calendar year, or any other 12-month period that the company may use for administrative purposes.

(d) In respect of the current leave year (the one in which the employee has returned to work) his or her annual leave will accrue in the normal way as if he or she had not been absent.

(e) In respect of the last leave year:

(i) calculate how much untaken leave remains in respect of that year;

(ii) grant that amount of leave within 6 months of the end of that leave year unless doing so is not possible because of the period of sickness. That is to say, if the employee has come back within the period 1 April to 30 September after the end of the last leave year, grant the leave in respect of that year before 30 September. If the period of sickness extends for more than six months from the end of the last leave year (ie after 30 September) then the leave must be granted within 15 months of the end of that leave year (ie by 30 June of the following year).

(f) In respect of the leave year before last:

(i) calculate how much untaken leave remains in respect of that year;

(ii) grant that amount of leave within 15 months of the end of that leave year (ie by 30 June the following year). If the 15-month period has passed the employee has lost the entitlement to leave in respect of that particular year.