Top 10 best practices for employers
Employers face a myriad of legal obligations when it comes to recruiting, retaining and terminating employees. As employment legislation and protections are ever-changing, employers must learn to adapt and be flexible to ensure compliance. This article sets out 10 best practices that all employers should consider to ensure that they remain compliant with legislation, while fostering good employee relations.
1. Issue terms and conditions within two months
Often, the main priority for an employer when hiring a new employee is to hit the ground running and doing paperwork can be delayed with the danger that something is forgotten about. However, terms and conditions of employment can be formed by usual practice; therefore, it is important to formalise all terms and conditions in writing as soon as possible to prevent any informal arrangements or verbal communications from unintentionally becoming contractual in nature. Usually, an employment contract is the main document that governs an employment relationship and should include all the relevant information regarding the employment (e.g. working hours, confidentiality, general duties, salary, etc.). The Terms of Employment (Information) Act, 1994, as amended, requires employers to provide certain prescribed information to employees within two months of starting employment (e.g. details of working hours, pay periods, sick leave processes, locations of employment, etc.). This minimal information must be given to employees in writing. Employers should ensure that the information required by the legislation is contained in the standard contracts of employment and be mindful of the time limit.
2. Check valid immigration permission
All persons who are not citizens of the European Economic Area require immigration permission to live and work in Ireland. It is a criminal offence for an employer to employ an individual who does not have appropriate and valid immigration permission. It is, therefore, important that checks are carried out at recruitment stage to ensure that candidates either already have the correct immigration permission or can obtain one with the assistance of the employer. Immigration permissions are specific to the individual and are also specific to the employer, job title and location of employment. It is important to check that all such details are correct before commencing employment. Finally, it should be a condition of employment that such immigration permission is kept valid and up-to-date records are kept and employees should be required as a condition of their employment to inform their employers of any change to their immigration status.
3. Ensure regular reviews and feedback during probationary periods
Probationary periods are useful for both employers and employees as a trial period to assess whether an employment relationship is right for both parties. It is advisable to regularly meet with and provide feedback to an employee during probation so that any performance or other employment issues can be addressed during this time. Employers should not allow probation periods to simply lapse and should track the proposed expiry dates to determine whether an employee has successfully passed probation or if the probation should be extended. Generally, probationary periods should not exceed 11 months in total (inclusive of notice periods).
4. Establish and maintain consistent policies and procedures
Clear and concise policies and procedures will benefit both management and employees in understanding what is expected of them in employment. At a minimum, it is best practice to consider implementing policies and procedures to address issues of Bullying and Harassment, Disciplinary, Grievances, Sickness Absence, Equal Opportunities, Computer and IT usage, Protective Leave (e.g. Maternity, Parental, Carer’s and Adoptive Leave, and Annual Leave, etc.). Remember that simply having policies and procedures is not sufficient and employers should ensure that such policies and procedures are implemented and adhered to consistently.
5. Be aware of permitting customs and practices in the workplace
Different workplaces have their own unique customs and practices. Normally these customs and practices are not written into policy, but continue on the basis of an informal understanding (e.g. a practice of taking a break at 11 a.m., etc.). If such informal practices continue for a lengthy period of time without interference from the employer, they could obtain contractual status as a term or condition of employment such that the employer is obliged to continue with the practice. Employers should be aware of any informal practices and customs existing or developing in their organisation and intervene in a timely manner if they do not wish such practices to become contractual.
6. Know your obligations regarding teleworkers/working from home
Technology allows employees to maintain fluid working arrangements that can exist outside of the traditional ‘desk job’. However, it is important for employers that offer such flexible working or teleworking arrangements to understand the issues that may arise. Firstly, teleworkers should be treated in the same way as ‘in office’ employees in terms of promotions, workload, incentives, etc. Employers will also need to comply with Health and Safety legislation, as well as the Organisation of Working Time Act, 1997 for teleworkers. This may mean that the employer provides the necessary work furniture (e.g. desk and chair) or inspect the employee’s home working facilities to ensure compliance. Employers should also ensure that an employee working from home will also have a ‘clock off’ time and rest breaks in the same way as other employees. It is recommended that a general Teleworking policy be implemented to set the parameters for such arrangement and that each request for teleworking is subject to consultation with the necessary stakeholders. A trial period may be useful in helping both parties assess the long-term suitability of the new arrangements, with the employer reserving the right to discontinue the teleworking arrangement at the end of the trial.
7. Comply with data-protection legislation
The Data Protection Acts, 1988 and 2003 impose significant obligations on employers as the controllers and processors of their employees’ personal and sensitive personal data. Employers should familiarise themselves with the obligations and implement correct HR and information security processes to ensure compliance (e.g. regular audits of personnel files, responding in a timely manner to data-access requests, etc.).
8. Be aware of atypical employees
Fixed-term workers, part-time workers and agency workers are used by a wide range of employers and the flexibility can be of great benefit. However, it is important to note that each category is protected by specific employment legislation (e.g. the Protection of Employees (Fixed Term Workers) Act, 2001 governs the employment relationship with fixed-term employees). Employers should always be aware of the levels of atypical employment in their organisation. Regular audits of such relationships are recommended to ensure that provisions of the employment protection legislation (e.g. for fixed-term renewals) are being complied with. Employers should also be aware that the atypical status of such employees may affect the tax treatment of any expense payments to them.
9. Obtain a full release of claims on making ex-gratia termination payments
In recent times, some employers have developed a practice of making ex-gratia payments to employees at the termination of their employment whether it be a redundancy or a severance scenario. Where an employer is not obliged to make a payment on termination (i.e. not a contractual or a statutory obligation) but does so anyway, it is best practice to ensure that a termination agreement is put in place that includes a full waiver of employment law claims, as well as any provisions relating to handovers, confidentiality and the return of company property, etc. Tax advice should also be obtained to ensure correct tax treatment of any ex-gratia payments.
10. Consult a professional
Employment law claims can cause serious damage to an organisation by way of reputational damage, financial and opportunity cost and management time and therefore it is important to obtain appropriate advice at the outset of an issue. The appropriate advice will depend on the type of issue, but can range from that provided by a professional in-house Human Resources/Employee Relations department, independent mediators, or legal professionals. Employers should seek relevant advice in a timely manner and this can often help to avoid further relationship damage and significant financial costs.