First Things First – What an Employer is Required to Provide in the First Two Months of Employment
Jo De Lamar from JHR Solutions gives great advice on meeting the legal requirements of taking on new staff
If employing staff, an employer must be aware that the employee is entitled by law to certain matters in writing within two months of starting employment.
Under the Terms of Employment (Information) Act 1994, an employee is entitled to receive their terms and conditions of employment set out in written form. While this forms a basic contract of employment, a contract will often contain matters in excess of those required by the Terms of Employment (Information) Act. The matters which need to be in writing include, commencement date, daily start and finish times or hours of working week, position/title, rate of remuneration, method and frequency of payment, location of workplace, annual leave, public holidays, breaks, notice on termination, access to pension scheme, type of contract, is it for an indefinite duration or is it for a fixed term for example.
In addition, an employee must be given a copy of the grievance and disciplinary procedures which set out the procedures for dealing either with an employee’s grievance or a disciplinary matter up to and including dismissal. These can be attached to the contract but should also be part of the company handbook. Having such procedures in place will assist in carrying out disciplinary matters in a fair and just manner. It will also comply with the requirements of the Unfair Dismissals Act 1977. In my experience, it is the lack of these procedures or the bad implementation of such procedures that leads to claims for unfair dismissal and a far greater chance the employer will be found liable. In fact, the reason for the dismissal will often become almost irrelevant in light of the procedures used in the execution of such a dismissal. Employees can be awarded up to two year’s salary if successful.
Where an employee is on a low hourly rate, the employer should also include in the written terms a clause stating the employee’s right to be given confirmation by their employer of their hourly rate of pay in a reference period. This is to ensure that the employee is receiving the minimum wage under the National Minimum Wage Act 2000. At present that stands at €8.65 per hour for an adult worker.
In addition to the basic terms set out above, the employer should also consider other requirements of the job such as the requirement for overtime, weekend work, unsociable hours, working at different locations. Where there is a requirement for any of these, it should be stated clearly in the written terms and conditions. The employer may also want to include a probationary period and this should also be clearly stated. The maximum allowable probationary period is 12 months.
Some other matters that may need to be addressed in a contract of employment are;
Contributory pension scheme/Company vehicle/Company credit card/Expenses/
Commission/Mileage/Bonus Scheme/Salary review/Sick pay/Absence
Apart from the disciplinary and dismissal procedures, an employer should also have procedures in place in regard to bullying and harassment and sexual harassment and have a written policy in regard to them. Having such written policies is a defence should an employee sue for harassment, bullying or discrimination.
Many employers, especially small employers often regard the requirements on them as onerous and often can’t understand why as a small employer they have to comply with so many laws and regulations in the same way as a large employer. However, if employers consider that these laws and regulations set out the employment rights of employees, then they will see it is irrelevant what size an employee’s employer is, an employee’s rights cannot change depending on who they work for. Once you employ just one employee you become an employer. On the other hand small employers can often benefit from having a very small, tight-knit workforce which generally results in an enormous amount of good will and cooperation, something often lost by large employers.
Finally, the employee will also be entitled to a payslip under the Payment of Wages Act 1991. This again should be in writing and should set out the gross to net pay including all legal deductions made on behalf of the employee. Any different rate of pay for overtime should be set out, any annual leave payments or pay for public holidays should also be set out. If the employee is paid hourly then the number of hours worked should also be included for clarity.
Perhaps at this point it might be worth pointing out some of the matters that an employer is not liable for in regard to his/her employee. An employer does not have to pay an employee sick pay. An employer does not have to pay an employee for breaks. An employer does not have to pay for maternity leave, parental leave or carer’s leave. An employer does not have to pay an employee who is absent from work. If correctly set out in the contract, an employer may also be able to recover losses as a result of the acts or omissions of the employee or for the provision of services to the employee, such as training. An employer does not have to deal with unions though every employee has a constitutional right to join a trade union.
A business cannot function without a minimum number of employees and could also not expand without adding to the workforce. It is not impossible to get it right and once an employer has their contracts in place and their policy and procedures in place and implemented, most of their legal requirements will be fulfilled in regard to employing staff.
About JHR Solutions
We are a committed and professional training and consultancy company. All our consultants and trainers are experienced in employment law and HR. In our experience, many employers end up in litigation due mainly to ignorance of their legal obligations and lack of procedures and policies. We aim to rectify this.
We offer our expertise and knowledge to improve your employment relationships and ensure your compliance with statute and avoid possible litigation, creating a safe and trusted employment relationship.
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