Introduction

The Employment Miscellaneous Provisions Act 2018 came into effect on March 4th 2019 with the aim of improving the security and predictability of working hours for employees on insecure contracts and those working variable hours. This short summary, by Brendan McGinty, Managing Partner, Stratis Consulting, highlights some of the key provisions and practical implications for employers.

Key Provisions

The Act address the following five key issues:

  • Prohibiting zero hours contracts, except in limited cases of genuine casual work or emergency cover or short-term relief work for that employer. Zero hours contracts need to be distinguished from casual work arrangements, in so far as casual work involves no mutuality of obligation (i.e. the employee is under no obligation to accept an assignment and there will be no negative consequences for the worker arising from his/her refusal.);
  • Ensuring that workers are better informed about their employment arrangements and to receive written notification of five core terms of employment within 5 calendar days of commencement of employment. These are:
    1. Names of employer and employee;
    2. Address of the employer (actual and registered office);
    3. Expected duration of employment if a temporary contract or end date if a fixed term contract;
    4. Rate or method of calculation of pay and pay reference period for purposes of the National Minimum Wage Act, 2000, and;
    5. Number of hours which the employer reasonably expects the employee to work (per normal day and per normal week); – Strengthening the provisions around minimum payments where employees are required to be available for work but are not called in or are sent home early;
  • Strengthens anti-penalisation provisions to give protection from detrimental treatment for employees who try to invoke a right under the legislation;
  • Ensuring that workers on low hour contracts who consistently work more than their contracted hours are entitled to be placed in a band of hours that reflects the reality of the hours they have worked over an extended period. There are 8 bands ranging from 2-6 hours and then moving in 5-hour bands up to 36 hours and over.

Steps for Employers to Take

The following are some advices for employers in managing these changes:

  • Review recruitment processes, template contracts and any offer letters in use to ensure they contain the 5 core terms
  • Ensure new hires receive, a statement of the core terms within 5 days. Alternatively, contracts of employment incorporating the existing information requirements under the 1994 Act and the new requirements could be issued before commencement of employment or within five calendar days of commencement;
  • A re-issue of existing contracts for those employed prior to the 04.03.19 is not necessary but employers should note that existing staff may request a compliance statement with the Act;
  • Review records regularly to ensure that specified contract hours actually reflect the hours being worked;
  • Accurate working time records will be needed to respond to an employee request to be placed in a band of hours;
  • Employers should be clear on their own process for dealing with a request for ‘banded hours’; –
  • Employers should be mindful that a genuine attempt to reduce an employee’s hours of work, having been placed on a band of hours or to revert back to the original contracted hours could give rise to allegations of penalisation;
  • Employers should ensure contracts and work practices do not fall foul of the ‘zero hours’ prohibition;
  • In the case of contractual arrangements for ‘casual work’, for these to be genuine, workers must be completely free to turn down offers of work without any consequences for them.

Finally, employers should also note that the issue of bogus self-employment also received considerable attention in the Oireachtas debates on the Employment (Miscellaneous Provisions) legislation. The issue has been considered by the Joint Committee on Employment Affairs and Social Protection since November 2018. It is now being addressed separately and the Minister for Employment Affairs and Social Protection has amongst other measures, proposed the establishment of a stand-alone body with enhanced resources to investigate claims of false self-employment more efficiently.

Brendan McGinty Managing Partner Stratis Consulting E: brendan.mcginty@stratis.ie M: +353 87 2433038


Thanks to the Irish Examiner for featuring, Geraldine King, CEO of the National Recruitment Federation, in “My Job” in the business section on Friday 17th May 2019. Read the article below…

Background

Voluntary organisation set up to establish and maintain standards and codes of practice for the Recruitment Industry in Ireland. Founded in 1971, the NRF represents recruitment agencies throughout the country and it also promotes professional competence within the industry.

Since its foundation almost a half-century ago, the National Recruitment Federation (NRF) has been tasked with providing support to its membership and promoting professional competence within the industry.

As part of this mission it has inaugurated a formal education programme in recruitment practice to ensure all new entrants to the industry have a solid grounding in legislation, customer service operations and sales.

Over recent decades the recruitment industry has changed significantly with the introduction of job boards and social recruitment having presented challenges to the fundamentals of how the industry operates.

Recognised as the foremost representative body for the industry in Ireland, the NRF also lobbies at national and European level in relation to changes that impact on its members.

“The NRF has grown considerably over the last decade in particular due to putting a focus on membership and its value,” explains Geraldine King, who joined in 2009.

“It was the middle of the recession and our industry was probably one of the hardest hit, and our members found themselves dealing with a totally different market.”

“It was a time when we needed to give our members tangible and workable toolkits to help them sustain and grow the business that they had.”

In her role as CEO, Geraldine King has lobbied government on labour market issues including barriers to women’s participation, the Agency Workers Act, investment in education and labour market skills and zero hours contracts.

As part of expanding NRF members’ services, she has also helped introduce the accredited Certificate in Recruitment Practice to the industry.

The main driver of the lobbying team resulting in the first apprenticeship programme for recruiters on the National Academic Framework, she also successfully secured a dedicated NRF ‘Skillnet’, providing subsidised training for members.

“We champion employment laws and any kind of legislative governance to help the worker, and maintain a good relationship with the Government and all those departments that are applicable to where we need to go.”

“And while we have to lobby locally for what is best for the Irish labour market, we are very conscious that it is often a challenge for smaller companies to make changes that have been enacted.”

“For this reason, we provide workshops and breakfast briefings to help them implement what the new legislation directs.”

The NRF is currently taking applications for its Programme in Recruitment Practice, the only dedicated programme of its kind in Ireland, and presented in partnership with the Institute of Leadership and Management (ILM) and City & Guilds.

“One of my first briefs coming into the NRF was to implement an education portfolio for members, and coming from a background in recruitment, I could see the need for it — also helped by my pre-recruitment background in training.”

“We put in place this certificate of recruitment practice which is the only one of its kind in Ireland, and which does tick a lot of boxes.”

Designed to instigate a uniform standard across the industry, the qualification will give holders a competitive edge: “The programme is a must for those new to the industry or for those with experience who wish to validate and improve their knowledge.”

“Agency clients will be secure in the knowledge that they are employing a qualified recruiter, and successful graduates will be entitled to use the ‘NRF certRP’ title after their name,” she adds.

In addition, the NRF has also recently applied for an apprenticeship programme, which would be a ‘first in the world degree’ of its kind.

“It is already written and we hope to have it in the market by January 2020, and we are only waiting on red tape to be completed,” she said.

Another issue with relevance for an Ireland currently at almost full employment is the research revealing that women over the age of 35 have lower participation rates in the workforce than their EU counterparts.

“The cost of childcare is the single biggest inhibitor of women with children returning to the workforce,” she says.

“Lack of affordable day-care and after-school childcare means one parent, usually the woman, but sometimes the man, has to give up their career, or to limit their contribution.”

With childcare costs in Ireland amongst the highest in the OECD, she cites the success of the Swedish system where state-supported childcare and education is fundamental to welfare policies and budget spending.

“Affordable childcare is a pipe dream for most Irish families when paying out monthly costs amounting to almost a second mortgage. There needs to be an holistic and determined approach where affordable childcare is the first hurdle, followed by further practical steps,” she believes.

“Encouraging the provision of flexible working options by employers, including the State, to assist parents integrate back into the workforce, with back-to-work training and a stepped return to build confidence and allow better preparation.”

Last September, Geraldine King and Frank Farrelly, CEO and president of the NRF, respectively, were ranked on a prestigious European listing for business leaders in the staffing arena.

The Staffing Industry Analysts (SIA), European Business Leaders Top 100 List recognised their roles in developing formal education and training supports within the Irish recruitment sector.

“Having two of the NRF executive included in this industry roll of honour is very satisfying and reflects the challenges currently faced by the recruitment sector in Ireland, navigating the world of work through the rapid shifts in the marketplace of late,” she said of the honour.

Read original article here.


Thanks to The Gloss’ “Look the Business” who recently chatted with Geraldine King, CEO of the National Recruitment Federation, for an update on employment law for employers…

‘Persons with young children need not apply’ appeared in an online Dublin job advert last year. It was promptly and widely condemned as blatant discrimination, and quickly removed.

Although discrimination is not widespread in Ireland, according to the National Recruitment Federation, employers can inadvertently find themselves in trouble if they are not up to speed with employee rights, especially when it comes to equality issues.

New Employment Act

The 2018 Employment Act came into effect in March 2019 to give employees greater clarity around working hours. Within five days of starting work, all new employees must now get a contract of employment or a statement containing (at least) five core terms of their employment, including the anticipated duration of their contract and the pay and hours expected.  

Zero-hour contracts essentially must be discontinued, apart from some limited exceptions, and all employment contracts should be reviewed to ensure employees who regularly work over their contracted hours get a contract that accurately reflects their working arrangement.

Numerous employment laws, including The Equality Acts, seek to outlaw discrimination and unfairness in recruitment and in the workplace. These apply to all employees and agency workers, full-time, part-time or contracted, in both the public and private sectors.   

Nine grounds of discrimination are covered: age, disability, gender, sexual orientation, family status, marital status, race, religion, and membership of the travelling community.

Mind your language

The online ad mentioned above seeking an office worker without children showed a pretty blatant disregard for equality law that most people would be conscious of. Marital and family circumstances have no place in the recruitment process, not even as an ‘ice breaker’ during an interview. Role titles in a job ad should not be gender specific, so employers must avoid terms like ‘waitress’, ‘barmaid’, ‘salesman’ or ‘manageress’. Other more subtle terms can be equally judged unacceptable. Looking for a ‘young and dynamic’ individual to join your team is out; both the age reference and dynamism can be a problem. Equally, ‘mature candidates’ should not be highlighted.

No experience needed

While you can advertise a role that demands a minimum level of skills or training for operational purposes, job adverts for candidates with ‘no more than 2-3 years’ experience’ can fall foul of the standards. Rather than asking for a certain amount of experience or years spent in a position, employers should focus on the required skills.

Aside from needing to be over 18 to sell certain products, an individual’s age shouldn’t affect their ability to do a job effectively. On race, it’s fine to look for a French-speaking account manager, for example, but restricting the position to ‘a native French speaker’ is not. A requirement to speak a language fluently is all that can be asked, not that English, or any other language, is your first language.

Publish and be damned

With discriminatory advertising, it’s not only the person who produced the offending copy who is in trouble. Those publishing it online, or in any media, can equally be held responsible. Have a failsafe in place, ideally a recruitment agency, to check your advertising and recruitment process to ensure regulations are adhered to.

Unbiased interviewing

The interview process demands experienced HR or recruitment personnel, conscious of questioning that may be termed discriminatory. An employee or manager that the prospective recruit will report to may sit in, but it isn’t wise for anyone untrained to conduct a job interview, and certainly not alone.  

When it comes to potential pitfalls, any mention of a woman being capable or confident in a male-dominated role or business is ill-advised, and vice versa. How an individual would cope with having a younger boss or being the oldest person in the department is also off-limits. Questions about sickness, health, or disabilities, like how many sick-days you had last year, should be avoided.

Questions relating to marriage plans, family intentions, children, age, physical ability and even distance from work or access to transport should not be asked. Use a ‘statement‐question’ approach, such as ‘this role can require working into the evening; do you have a problem with that?’ but never ‘do you have kids to take care of?’

Notes and feedback

For transparency in the interview process, use the same pre-determined questions, making notes on why each candidate was successful or not. The grounds on which a decision was reached, and how different candidates rated under the same role-related criteria, must be outlined. And these should be kept for at least a year after the recruitment process.

It is also recommended to give clear well-explained reasons to unsuccessful candidates as to why they were not selected, as well as constructive feedback. A good selection procedure is driven by the demands and requirements of the role alone; judge candidates only on their skills and abilities relating to the job, and you won’t go wrong.