Could your HR System Be a Potential Liability?

Many small and medium-sized companies in Ireland are not properly legally protecting themselves when it comes to Employment and Health and Safety Legislation. In order to avoid complaints being made against you, legal cases or even criminal charges, which can have very serious implications for your business, you need to thoroughly understand three key areas; Contracts of Employment, the Staff Handbook, and Health & Safety Policy.

This article contains some useful advice to keep you compliant.

However, when making any changes to your Human Resources or Health & Safety procedures, it is advisable to seek advice from a qualified source and conduct a comprehensive review.

I have included expert recommendations at the end.

Workplace Relations Complaints

All employers should be familiar with the website www.workplacerelations.ie, should download and read the Workplace Relations Complaint Form, and should understand the role of the National Employment Rights Authority (NERA).

If an employee makes a formal complaint, the first step is usually an adjudication service, which is an informal process with a recommendation.

However, mediation may be offered before this. Even if you don’t intend to mediate, it is good practice to show up and listen to what they have to say.

You should arrive prepared, with the contract of employment, the staff handbook, any relevant paperwork or relevant witnesses.

Disciplinary Procedures

Advice on Verbal Warnings

Put verbal warnings on paper. As an employer, you can create a written document detailing the warning and show this to your employee during the discussion. This augments your paper trail, in the event that evidence of the disciplinary process is required in the future.

Advice on Dealing with Gross Misconduct

This might seem like a no-brainer, but there still may be an idea that if an employee commits an act of gross misconduct, they can be sacked on the spot. This is not advisable and, in this situation, an employee should be placed on fully paid suspension, pending an investigation.

Advice on Disciplinary Meetings

–     Always have a minute taker. This person simply takes notes and does not get involved.

–     Type out the questions to be asked and have the minute taker write the responses.

–     Keep both a handwritten copy and the typed version of the minutes.

–     Keep a hard-copy folder with details of the invitation to the meeting, the minutes of the meeting, the decision of the meeting, etc. In court, employers with a strong paper trail are more likely to be successful.

Working Time Act

As an employer, you should be aware of the Organisation of Working Time Act, 1997. You need to be able to demonstrate that employees have been offered and have taken their breaks, that they have not worked more than 48 hours on average and that they have had 11 consecutive hours rest between shifts.

If they engage in paid work anywhere else, they must tell you because if that meant they were working over 48 hours on average or not getting 11 hours consecutive rest, you would not be able to continue to employ them. You need to be able to demonstrate that you have asked this question, but if an employee does not disclose this information to you, you have covered your responsibility by asking the question.

Employment Contract & Staff Handbook

Employment Contract

Employment contracts should be two to three pages and should include information such as the employee’s start date, job title, job description, hours, pay, overtime, place of work, annual leave and retirement date.

Note – if you don’t include a retirement date, there is no obligation for the employee to retire. You can include a clause like “You will qualify for retirement when you qualify for the state pension. At that point, if both parties agree, you may enter into a new fixed-term employment.”

The contract should only contain information that is specific to that employee, and everything else should be moved to the staff handbook so that you can update this when necessary.

The last paragraph of the employment contract should reference the staff handbook and the fact that it will be updated from time to time without negotiation.

You need to be able to prove you have given the employment contract to the employee. You should keep a hard copy of all employment contracts.

Staff Handbook

A hard copy of the staff handbook can be kept in a central location such as the reception, with all employees being given a soft copy during induction and each time it is updated.

Four procedures that should be included are:

  • Grievance
  • Disciplinary
  • Dignity at work
  • Bullying

Each should be detailed; at least two pages long. The disciplinary procedures should contain examples of minor, major and gross misconduct. It should list as many examples as possible, and including ‘this is not an exhaustive list’ is good practice.

Steps to Update Employment Contracts & Staff Handbook

In many cases, you will find that employment contracts contain information, which should be in the staff handbook and, if you wish to correct this, the recommended steps would be:

  1. Generally, notify your staff that you are updating these documents.
  2. Hold a one-to-one meeting with each staff member. The three things to have at the meeting are the new employment contract, the updated staff handbook and a sign-in sheet. You should reassure them that the employment contract essentially hasn’t changed. The employee should sign in to say that they attended a meeting where the employment contract and staff handbook were offered and made available. If they won’t sign, have a witness sign to say that this happened.
  3. Ask the staff member to take them away and come back by a certain date to confirm that they have received, read and understood them. If they don’t come back, send them an email to say that you haven’t heard back from them and are assuming that they have received, read and understood the new employment contract and staff handbook.

Policies to Include in the Staff Handbook

Other policies to consider including in the staff handbook are: Whistleblowing, alcohol & drugs, wages/salary, CCTV, media, wastage, dress, mobile phone, sickness, lateness/absence, confidentiality, compensation, copyright and computer usage.

Sickness Policy

It is advisable to have a policy that states that the employee must contact their line manager on the first day they are out by phone within a certain time of their normal start time. On their first day back, have them fill out a return to work form asking questions such as – Why were you out? Are you fit to be back?

CCTV Policy

You need a detailed CCTV policy if you want to use it in a disciplinary procedure. For example, you could include, “In general, we reserve the right to use CCTV for security purposes but it may also be used for disciplinary procedures.” If your policy doesn’t say this, you can’t use CCTV in disciplinary matters.

Data Policy

It is a good idea to have a policy that you can check work email and work phones at any time.

Exit Interview

It is good practice to conduct an exit interview on the day an employee gives you notice. Ask questions such as -“Why are you going? Have you any issues with the company that are making you leave?”

Health & Safety Policy

The Health and Safety Policy should be outlined in the Staff Handbook. All organisations are required to have a Health & Safety Statement and Risk Assessment. For more details see – www.hsa.ie

At induction, all employees should sign to say that they have seen the Health and Safety Statement. The Health & Safety Statement should be reviewed every 12 months. Whoever is the nominated Health & Safety responsible person should be a properly qualified, ‘competent person’.

When your staff attend any training, you should have proof that they were there. If a staff member has signed a form to say that they have relevant training when they are hired, you must obtain proof that they have, in fact, completed that training.

Work-related injury is a very serious issue for employers, and having an Incident Report Procedure in place is a very important part of the Health and Safety policy. Staff must be aware that an Incident Report Form must be filled out as soon as possible after an incident that causes them injury has occurred.

References

The article above is based on my key takeaways from a talk given recently in the Galway Chamber of Commerce by:

Terence Morgan, of Peninsula Ireland Galway, who specialises in Employment Law, HR and Health & Safety Policy.

Kevin Callan, a barrister specialising in Employment Law.

Note – originally posted on LinkedIn in Nov’17



Leave a Reply