Promoting Partnership in Supported Employment

2nd October 2008

Deirdre McHugh B.A. LL.B. LL.M. Barrister-at-Law

353 Management & Legal Training Services

Legal Responsibilities of Employers

Outline

• Introduction• Legal Compliance & the consequences of non-

compliance• Disability Act 2005• Contracts of Employment• 9 Grounds for Discrimination – focus on Recruitment & Selection process• Checklist.

Legal Compliance

• All people managers realise that they must be legally compliant.

• Realistically, however, they can become distracted with business and getting the job done.

• Management must at all times be vigilant in preventing any negative issue arising.

• How?1. By being legally compliant.2. By recognising that a situation may be about to arise &3. By preventing it happening 4. By diffusing it5. By communicating effectively.

What are the Consequences of Non-Compliance?

• Company Directors & Managers can be found personally liable for breaches of Health & Safety legislation.

• Failure to comply with Health & Safety Act 2005 may carry a potential prison term of up to 6 months on conviction in the District Court, with up to 2 year imprisonment &/or a maximum fine of up to €3 million on conviction on indictment in the Circuit Court.

• Loss of Working Time; High rates of absenteeism.

• Drop in Productivity & Profits; Reduced efficiency.

• Damaged Reputation

• Increased Cases taken to Court: Increase in Legal & Administration Costs

• Increased Insurance Premiums

• Additional costs of re-hiring.

• Low morale among staff. •Reduced quality and quality control

•Atmosphere of tension

Disability Act 2005

The Act establishes a basis for:• an independent assessment of individual needs, a related service statement & independent redress & enforcement for persons with disabilities;• access to public buildings, services & information;• sectoral plans;• an obligation on public bodies to be proactive in employing people with disabilities;• restricting the use of information from genetic testing for employment, mortgage & insurance purposes;• a Centre for Excellence in Universal Design.

The Disability Act 2005 defines disability as follows:

“Disability, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment.”

·  This includes an episodic condition which is a permanent condition that may flare up from time to time.

Social life, leisure or cultural activities would include watching TV, reading, listening to music, using a car or public transport, going to the cinema, to a match or other types of socialising.

If the employer is being informed for the first time that a person has a disability, that person may also wish to discuss the matter with a designated official around any requirements they may need to accommodate their disability, including any health and safety issues for that person. The employer is legally obliged under Employment Equality leglisation to reasonably accommodate an employee with a disability. For example a person may require assistive technology, changes to the workplace, changes to their duties or to their work pattern. The employer also has a duty of care to all employees under health and safety legislation, for example to ensure employees can safely evacuate the workplace in the event of an emergency.

Disability Act 2005

Disability issues.

• It is advisable that an employee inform an employer of their disability so that reasonable accommodation can be made for them for health and safety reasons.

• Employers/Interviewers should never discuss a person’s disability. It is a matter for the medical practitioner to advise the employer accordingly of whether a person is fit to do the job or not.

Contracts of Employment

Must be in writing

Must be given within 2 months of starting work.

Contents as per the Terms of Employment (Information) Act, 1994.

Express Terms.

Implied Terms.

Contents as per the Terms of Employment (Information) Act, 1994.

•The full names of both employer and employee;

•The address of the employer;

•The place of work;

•The title of the job or nature of the work;

•The date of commencement of the contract of employment;

•Re: temporary contracts, the expected duration or Re: fixed term contracts the date on which the contract expires;

•The rate or method of calculation of the employees remuneration details as to what intervals the payment remuneration will be made and how it will be paid;

Contents as per the Terms of Employment (Information) Act, 1994. Contd.

• Hours of work including overtime;

• Paid leave (other than paid sick leave);

• Sick leave or for payment due to incapacity as a result of injury;

• Details of pensions or pension schemes;

• Notice Period.

• Reference any relevant and related collective agreements.

• Details concerning an employee’s requirement to work outside the State. 

• Notification of any changes in an employee’s terms.  

In addition to the terms already discussed, some of the following terms may be added:

1. Job Description

2. Exclusive service.

3. Probation.

4. Company Car.

5. Retirement Age.

6. Grievance Procedure.

7. Disciplinary Procedure.

8. Restrictive Covenants.

9. Search Clause.

10. Patents, Copyrights, Inventions.

11. Share Options.

12. Resignation of Directorships/Offices on termination of employment.

13. Proper Law.

14. Other Miscellaneous terms e.g. hygiene, punctuality etc.

Express Terms

Equality Act 2004

Gender (male/female)Marital Status(single, married, separated, divorced or

widowed)Family StatusSexual OrientationAgeDisabilityRaceReligionMembership of the Travelling Community

The 9 Grounds for DiscriminationThe 9 Grounds for Discrimination

Employment Equality

Steps in Recruitment & Selection that will be reviewed with Equality in mind

Personal Specification (Job Description) Advertising Job Application Form Shortlisting Selection Tests The actual Interview Interview Assessment Medical Examination Offer of Employment Appointment

Recruitment and Selection

Top TipsTop Tips

When drawing up the Personal Specification – only those specifications that are absolutely essential in order to do the job competently should be used.

For example are certain academic qualifications essential to perform the job, and if not, will such an unnecessary requirement discriminate against non-Irish nationals.

Similarly, an upper age requirement of 25 year would be discriminatory on grounds of age; a requirement to possess a driving licence, if driving not an essential part of the job, would discriminate against disabled people as they are less likely to have a licence.

Recruitment and Selection

Top TipsTop Tips

How/Where to Advertise

When making this decision, you must ensure that everyone has the same opportunity to find out about a vacancy and apply for that vacancy. Therefore employers should be careful about placing an advertisement in a publication likely to be read by members of only one sex or in a location that discriminates against older people (e.g. a college). You should also ensure that staff on leave (annual, maternity, parental and sick leave) are informed of vacancies.

Recruitment and Selection

Top TipsTop Tips

The Contents of the Advertisement

The advertisement must not indicate (either intentionally or unintentionally) that the organisation is seeking to recruit a member of a particular sex, martial or family status, a particular age category, people of a particular race, people without a disability and so on in relation to other categories covered by the Act.

Be careful with choice of photograph for advertisementAvoid where possible using terms like foreman or waitress etc.(Jobs that were associated with members of a particular gender in the past).

Recruitment and Selection

Top TipsTop Tips

The Contents of the Advertisement

Use job titles which do not make reference to gender e.g. operator, sales representative and so on. Where equivalent male and female jobs exist, then both should be used e.g. waiter/waitress.

Ensure that in any advertisement which contains reference to experience and qualifications required, these are in fact necessary for the candidate to be able to perform the job competently.

Recruitment and Selection

Top TipsTop Tips

Application Forms

If you use application forms in the selection procedure, care should be taken in two respects:

That all who wish to apply can get an application form, and

That the form does not contain either questions which are actually discriminatory or which give rise to an inference of discrimination (Questions on marital status, numbers of children, date of birth, place of birth and medical history should not be on the job application form)

Recruitment and Selection

Top TipsTop TipsThe Interview

This is the stage of the recruitment process where most claims alleging discrimination are likely to arise. That is, that discriminatory questions were asked at interview or a decision on who to appoint was based on discriminatory grounds.

It is very important that the interview panel is gender balanced.

Generally complainants have found it difficult to prove that they would have got the job if they had not been discriminated against, but they have got compensation in several cases for the stress allegedly suffered as a result of discriminatory questions asked, or statements made by members of the interview panel.

Recruitment and Selection

Top TipsTop Tips

How to avoid discriminatory questions

Ask the same question from all candidates. If a particular question on personal circumstances cannot be asked from all candidates, then do not ask any of them.

Emphasise the demands of the job. For example, a requirement to work overtime at short notice, requirement to change shift at short notice, the fact that the job may entail travel and involve staying away over night etc.

Ensure that all members of the interview panel are aware of the requirements of equality legislation and implications

Recruitment and Selection

Top TipsTop Tips

The Interview Assessment

Each interviewer should compare the attributes of the candidate against specific criteria laid down in the personal specification. Marks should be awarded first and their outcome discussed afterwards.

All records in relation to the recruitment process should be kept on file for at least 12 months. An individual can bring a claim for alleging discrimination for up to six months after the date of the alleged act and an extension for up to six months is allowed where there is a good cause for not referring a claim within this six months time period.

Recruitment and Selection

Top TipsTop Tips

Pre-employment Medical

A pre-employment medical should form part of the recruitment and selection process. Best practice is that candidates should complete their medical prior to the job offer being made.Pregnancy/Maternity Leave

Candidates who because of pregnancy or maternity leave cannot start work at the required starting date should not be treated less favourably for this reason.

ReferencesIt is critical that appropriate reference checks are done. It is equally important to know the person giving the reference as well as getting a good reference on the potential employee.

Employer’s Checklist

1. Do you have signed contracts of employment for every employee?

2. Do you have a recruitment & selection policy & procedure in place?

3. Do you have an interview checklist/list of questions in place for every interview & do you mark accordingly?

4. Have you maintained records in relation to all shortlisting & interviews going back at least 12 months?

5. Do you have a safety statement in place & have all of your employees received a copy of it in their own language?

Employer’s Checklist

6. Do you have a Health & Safety Policy?7. Do you have a grievance, complaints &

investigation procedure?8. Do you have a disciplinary policy & procedure?9. Do you have a Working Hours & Time Keeping

Policy & Procedure?10. Are your employees getting their proper breaks &

rest periods & can you prove it?11. Are your employees working less than an average

of 48 hours per week & can you prove it?

Employer’s Checklist

12. Do you maintain records for all employees in relation to the following:

• Annual leave;

• Public holidays;

• Maternity leave;

• Adoptive leave;

• Parental Leave;

• Force Majeure Leave;

• Carer’s Leave.

Employer’s Checklist

13. Do you provide all your employees with a payslip detailing their wages & any deductions being made?

14. Are you registered for PRSA & are you deducting employees personal pensions at source?

15. Do you provide induction training to all your employees & can you prove it?

16. Are all your managers trained according to their level of responsibility?

17. Do you have a policy on Bullying, Harassment & Discrimination in the workplace i.e. a Dignity at Work Policy?

Employer’s Checklist

18. Do you have an equal opportunities policy in place?19. Do you have an absence management/sick leave/sick pay

policy in place?20. Do you have a probation policy in place?21. Do you have a performance appraisal policy in place?22. Do you have an Electronic Communications & IT policy

in place?23. Do you have a Data Protection & Personal Information

Policy in place?24. Do you have a leave of absence policy in place?25. Do you have a work/life balance policy in place?

Employer’s Checklist

• If you answered NO to ANY of the questions 1 through 17, then you are not legally compliant.

• In relation to all the policies mentioned,– Have you a written policy in place?

– Have you reviewed it in the last 12 months?

– Have you communicated it to all employees?

– Have you trained all your managers/supervisors on policy implementation?

Finally……

• Employers need to ensure that they are legally compliant at all times.• Follow what is in the contract of employment and in your policies and

procedures (provided it is legally compliant) rigorously.• Ensure your managers and supervisors are trained on the contract of

employment, your policies and procedures and ensure that they follow them rigorously.

• Remember if a dispute arises and an employee takes you to a court or tribunal, in most cases you will be guilty until you can prove your innocence on the balance of probabilities. This is not an easy thing to do if you do not have all your paper work in order and can prove that your policies and procedures were followed.

• Employers need to remember that they are not medical practitioners & should never decide on an illness and/or disability.

• If in doubt, get legal advise.

Deirdre McHugh 353 Management & Legal Training Services

Thank you for your attention.

For further details, please contact:

Deirdre McHugh B.A. LL.B. LL.M. Barrister-at-Law353 Management & Legal Training ServicesProvidence, Maree Road, Oranmore, Co. Galway.

Mob. (087) 2482075 Email: info353@gmail.com Website: www.353.eu.com