Fitzsimons Redmond Solicitors

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Author: Lisa Quinn O'Flaherty (page 1 of 4)

Accommodating Breastfeeding at Work

Our Lisa Quinn O’Flaherty shared her opinion on accommodations for breastfeeding in the workplace in the Irish Times (28th October 2020). The letter can be read here.

Employment Law Guide: Protected Disclosures

A protected disclosure is whistleblower protection for an employee, granted under the Protected Disclosures Act 2014. It arises where an employee uncovers wrongdoing by the employer, and protects the employee from reprisals. The effect of the legislation to encourage employees to speak up when they become aware of wrongdoing.

An employer must generally grant anonymity to the employee together with protection from penalisation including by way of dismissal, suspension, demotion, reduction of wages, transfer of duties, harassment, intimidation, discrimination or threats of reprisals. The employer must also investigate the alleged wrongdoing, and take corrective measures where appropriate. The employee is immune from civil actions arising from their disclosure.

A protected disclosure must be distinguished from a grievance as the protections arise where there is an act or omission on the part of the employer that is potentially illegal or wrongful. The information must have come to the employee in the course of their employment. It must be sufficiently detailed and concern:

  • Criminal offences
  • Legal compliance
  • Risks to the health and safety of any individual
  • Environmental damage
  • Miscarriages of justice
  • Misuse of public funds
  • Oppressive, discriminatory, or grossly negligent conduct of a public body

or

  • Concealment of wrongdoing

The employee must make the disclosure in good faith, believing it to be true. The employee will not be protected if he or she has made a disclosure maliciously or falsely.

A disclosure will be protected if it is made to:

  • The employer with a reasonable belief
  • A prescribed body (such as the ODCE or the Health and Safety Authority) with a substantially true allegation

Or to

  • An external person, such as a journalist with a reasonable belief of substantive truth, and there is a likelihood of destruction of evidence, and where the exceptional wrongdoing has substantially been disclosed to the employer, a Minister or a prescribed person. The whistleblower will not be protected if he or she makes a personal gain from the disclosure.

One can make a protected disclosure without specifically invoking the act, so employers must proceed with caution when a wrongful or illegal act or omission is brought to their attention by any means.

After a disclosure of wrongdoing is made, an employer must exercise caution in relation to their treatment of the disclosing employee. An employee can be awarded up to five years remuneration in damages for dismissal or penalisation for making a protected disclosure.

Unlike a usual claim for unfair dismissal, there is no service requirement so a recent hire can claim remedies for penalisation or dismissal.

It happens that protected disclosures can arise where the employer/employee relationship is already strained, and in such scenario the employer must exercise particular caution. Recently, the High Court held that negative inferences as to the bona fides of a performance issue (given as the reason for dismissal following a disclosure) could be made as a result of:

  • Performance only becoming an issue after the disclosure was made
  • Increased or relentless assessment of performance
  • Whether the correct disciplinary procedure and fair procedures were followed in respect of performance shortcomings.

For this reason employers should ensure that they have an appropriate Protected Disclosure Policy or Whistleblowers Charter, a clear grievance procedure, a disciplinary policy and a strong performance management structure and practice.

We would be happy to work with your business to develop a set of policies that will ensure the smooth functioning of your workplace. Please call us on 01- 6763257 if you would like to discuss options for your business.

By Lisa Quinn O’Flaherty

Solicitor at Fitzsimons Redmond

Employment Law Guide: Fair Selection in Redundancy

Given the pressures faced by businesses during the pandemic, it is saddening but not surprising to see a rising number of workers being made redundant. A redundancy arises where the employer ceases trading or has a diminished need for employees.

A redundancy must follow fair procedures or the employer may land themselves in hot water in respect of an unfair dismissal claim or an employment equality claim.

Although, it is not an obligation to consult with employees prior to a non-collective redundancy, it is always advisable to do so and to seek volunteers for redundancy. Otherwise, the person or people retained must be the best fit for the role, holding the most appropriate qualifications and experience.

The employer must not discriminate based on:

  • Age
  • Gender
  • Civil Status
  • Family status
  • Sexual orientation
  • Religion
  • Disability
  • Race
  • Membership of the traveller community

When making the selection, the employer must be conscious of any indirect discrimination based on these grounds.

The employer must not select for redundancy an individual who is on protected leave such as maternity or adoptive leave, and must exercise caution in relation to employees who are on sick leave or those with health conditions. They also must not select an employee merely because they are part-time or on a fixed term contract.

In selecting the person to be made redundant, the employer must select using objective, business led grounds.

Consideration must be given to custom and practice in both the company and the industry as well as any collective agreements. If there is a practice of ‘first in, last out’ the employer must examine whether this could give rise to an allegation of ageism.

The employer must not look at the conduct or disciplinary history of employees, as warnings and other sanctions on an employee’s record are deemed as a stand alone punishment, to use them as a selection criterion also would amount to double punishment. If an employee has current conduct issues or is under investigation, it would be extremely unwise to rely on this state of affairs to determine selection.

Similarly, the employer must beware of reliance on the performance history of an employee, as this may be deemed to be subjective, in particular in the absence of objective and regular documented performance reviews.

Selection for redundancy is a tricky area and employers are advised to use transparent and objective criteria, and to take legal advice at an early stage.

Fitzsimons Redmond would be happy to guide you and your business through the redundancy process.  Please call us on 01- 6763257 if you would like to talk to us.

Lisa Quinn O’Flaherty                                                                                                                                   Solicitor at Fitzsimons Redmond

Welcome to Caroline Gill

We at Fitzsimons Redmond, would like to welcome Caroline Gill to the firm. Caroline has been working with us since June as she converts her barrister qualification to that of a solicitor. We are honoured to benefit from Caroline’s vast and diverse experience.

A qualified barrister (with a wide practice), mediator and arbitrator, Caroline is a fellow of the Chartered Institute of Personnel and Development, a member of the Marketing Institute of Ireland and the Employment Bar Association of Ireland.

Caroline’s impressive career has included roles such as Financial Services Ombudsman in the UK, the Insurance Ombudsman of Ireland, and the Deputy Financial Services Ombudsman of Ireland. She was CEO of the Consumer Association of Ireland, and sat on the boards of the Pyrite Remediation Scheme, the Housing Agency, Luas, the Irish Stock Exchange, the Mater Dei Institute at DCU and the Food Safety Authority of Ireland. She currently sits on the board of ICCL, St. Patrick’s Hospital, the CPD Board, the PTSB Mortgage Products Tribunal, and the Lloyd’s Bank of Scotland Tracker Mortgage Tribunal.

We are absolutely delighted to work with Caroline and to welcome her numerous skills, talents and expertise to Fitzsimons Redmond.

Professional Wellbeing Charter

Fitzsimons Redmond is proud to become a signatory to the Law Society of Ireland’s Professional Wellbeing Charter. We consider ourselves to be a happy, high performing team. We embody principles of kindness, respect and flexibility. Now, while some of our team are working from home, we would like to declare our commitment to wellbeing in the workplace and respectful business practices.

Signatories to the charter promise to:

  • Work to create a healthy workplace culture characterised by behaviours and practices that promote effective communication and active listening so the office experience is one of trust, respect, honesty, fairness, compassion and psychological safety.
  • Build an environment where leaders promote professional wellbeing and take appropriate action to protect employees’ mental health including holding unprofessional behaviours to account, with consequences.
  • Work to reduce stigma associated with mental health in the workplace.
  • Build employee and management capacity to support employees’ psychological and mental health concerns and be able to respond effectively to these as needed.
  • Strive to create a work environment where tasks and responsibilities can be accomplished within a realistic timeframe and that promotes work/life balance.
  • Encourage and support employees in the development of their social and emotional needs, as well as their job skills.
  • Nurture a work environment where employees derive a sense of meaning and purpose from their work and are appropriately recognised and rewarded for their work efforts.
  • Ensure policies, procedures and processes are in place that safeguard employee psychological safety and mental health.

We are confident that our workplace embodies these commitments and we would be happy to work with other businesses to develop a set of policies that will promote high-performing teams of well and motivated individuals. Please call us on 01- 6763257 if you would like to discuss options for your business.

Employment Law Update: Lay-off and Short Time during Covid-19 Crisis

The pandemic has required many businesses to make changes to their relationships with their employees. The pressures of business closures and restrictions have made it impossible for many businesses to fulfil their employment contracts.

Businesses may put their staff on short time which involves a person working less than 50% of their normal hours or receiving less than 50% of their normal pay. Or they may temporarily lay-off or furlough employees.

If the contract of employment or custom and practice in the workplace allows for short time and lay-off, then the employer may do so. In other cases, the employer must seek the agreement of the employee prior to making the decision. If the employee does not agree the employer may make the employee redundant.

Employers must not unfairly target part-time workers or fixed-term workers for selection for lay-off or reduced hours. They must also take care when selecting employees not to discriminate on the grounds of:

– Age
– Gender
– Civil Status
– Family status
– Sexual orientation
– Religion
– Disability
– Race
– Membership of the traveler community

Short term and lay-off are intended to be temporary measures, and in normal circumstances an employee would be entitled to claim a redundancy payment if their working time was altered for in excess of 4 weeks or any six weeks in the previous 13 weeks.

This right has been suspended as an emergency measure in light of Covid-19, but will resume again as of 30th November. If your business is not operating as normal, and your employees are on reduced working hours, you must be aware that claims for redundancy payment may be forthcoming. If an employer receives a notice from an employee that they intend to claim redundancy, they can respond offering a period of continuous work for at least 13 weeks (without lay off or short time) beginning within 4 weeks.

At this difficult time, it is important for employers to remain open and transparent with employees and for both employers and employees to work together flexibly, so as to ensure that businesses can resume trading normally again.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business in making sustainable decisions for your business.

By Lisa Quinn O’Flaherty, solicitor at Fitzsimons Redmond

GEDI Charter

GEDI CHARTER

We are very proud to receive our Gender Equality Diversity and Inclusion Charter Certificate today from the Law Society of Ireland, and to be included among the first signatories of this important statement about fairness and equality in the legal profession.

Signing up to the charter demonstrates a commitment to treating all individuals and groups of individuals fairly and equally and no less favourably, specific to their needs, in areas of gender, civil status, family status, sexual orientation, religion, age, race, class, disability or membership of the Traveller Community. As such, signatories will:

  • Recognise the individual needs of those they employ and support them to develop to their full potential.
  • Ensure equal access to opportunities for those they employ.
  • Ensure their policies, procedures and processes promote gender equality, diversity and inclusion.
  • Carry out their work without bias, in a respectful and non-discriminatory manner.
  • Build awareness and understanding of the benefits of promoting gender equality, diversity and inclusion.
  • Assign responsibility for meeting the Gender Equality, Diversity and Inclusion Charter commitments to a named senior partner or member of staff. Signatories are encouraged to publish details of the senior leader who is accountable for the Charter commitments on your website or intranet.

Employment Law Guide: Fixed-Term Workers

 

A fixed- term or temporary worker is employed under a contract of services, which is characterised as having a defined end point. The contract may be one of a fixed duration for example one year, or one that will end when a specific event occurs such as the completion of a project. These contracts can be beneficial to both employee and employer. There is no legal limit to the duration of a fixed term contract.

The fixed- term employee has all of the same rights and responsibilities as a permanent employee. He or she is entitled, among other things to:

  • terms of employment in writing
  • appropriate hours of work and breaks
  • pay that is not less than the minimum wage
  • a safe place of work
  • protection from unfair dismissal during the term of the contract
  • rights in respect of redundancy
  • protection in respect of transfers of undertakings
  • protection in relation to industrial relations

The fixed-term employee is also given certain protections under the Protection of Employees (Fixed-Term Workers) Act 2003. He or she is entitled to equal access to training and opportunities for professional development.

He or she is generally protected from treatment less favourable to that of a permanent employee who does  similar work or work of equal or greater value.

If less favourable treatment does arise, the employer must be able to demonstrate either that the fixed-term worker’s contract is at least as favourable as their comparator’s contract, as a whole. Alternatively, he or she must demonstrate that there are objective grounds for the disparity in treatment. There must also a legitimate objective for the difference in treatment, and this reason cannot be simply a cost saving. The difference in treatment must be necessary and proportionate to achieve the objective.

If an employer is going to treat a fixed-term worker differently, he or she must have considered all other options in relation to achieving the objective and he or she must have consulted with the employee.

There is a derogation from the rules in respect of pensions where it is allowable to treat a fixed-term worker less favourably, if he or she works less than 20 per cent of the hours of the comparator. This is justified in by the expense involved in providing a pension.

Employers have a duty to inform fixed-term workers of vacancies for permanent positions, but  are not obliged to automatically offer the role to the temporary worker.

The biggest and most frequent issues arising around fixed-term contracts are successive fixed-term contracts. If an employer intends to renew a fixed-term employment contract, he or she must inform the employee in writing, in advance of the contract expiry of the objective reason justifying another fixed-term. If the employer fails to do this the second employment contract is deemed to be a permanent contract.

If the original fixed-term contract began after 14th July 2003, the employee may be employed for two or more continuous fixed terms for up to four years. Any renewal after four years must be justified by a strong objective reason.

Employers should exercise caution in respect of their treatment of fixed-term employees, and should only use this type of contract if there is a legitimate reason for it. It should never be used merely as an avoidance of providing job security or as an alternative to proper business planning.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business in relation to tailoring appropriate contracts of employment for your business.

By Lisa Quinn O’Flaherty, solicitor at Fitzsimons Redmond

The Law on Breastfeeding in the Workplace

As we celebrate this years World Breastfeeding week, I am conscious of the inequalities of opportunity for breastfeeding mothers in the workplace and their babies. I am lucky enough to have recently returned after maternity leave to a workplace that is wholly supportive of breastfeeding. I have a nice private office where I can comfortably express milk as I work away, and colleagues who are unfazed by the whir of my double electric pump, as they pop in to my office for chats, and even bring documents from the printer so that I don’t have to unlatch the pump to do it myself. It feels uncomfortable to me that this is not a universal experience, given that breastfeeding up the age of two and beyond is both biologically normal and recommended by the World Health Organisation and most health experts.

The majority of working mothers take 26 weeks maternity leave. Breastfeeding in the workplace is explicitly protected by the Maternity Protection Act 1994 as amended for only 26 weeks following the birth of a child. Those who return to work prior to that, are entitled (by virtue of the Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations 2004) to an hour a day of paid leave to breastfeed or express milk where the employer provides facilities for breastfeeding. Where there are no such facilities, the employee is entitled to a reduction in working hours, without loss of pay. There is no obligation on employers to provide these facilities unless it comes at nominal cost.

Employment contracts and individual workplace policies may provide for further protections for the breastfeeding relationship, but these are not widespread, leading to many mothers expressing milk on their lunch break in uncomfortable locations, or indeed to bring their breastfeeding journey to an earlier end than planned. It is open to all employers to implement a breastfeeding policy that encompasses the supports needed for breastfeeding in the workplace. This office can assist employers who wish to become leaders in family friendly workplaces by developing a robust breastfeeding policy tailored to suit the individual work environment.

The Safety, Health and Welfare at Work (General Application) Regulations (SI No 299 of 2007) provides that employers are obliged to conduct a hazard assessment when an employee returns to work while breastfeeding, within 26 weeks of giving birth. However, there is a general obligation under the Safety Health and Welfare at Work Act 2005 to provide a safe working environment. Breastfeeding mothers, regardless of the time since they have given birth are at risk of engorgement, blocked ducts and mastitis if they do not regularly feed their baby or express milk. There may also be other workplace specific risks for the mother or the baby, beyond 26 weeks post-partum. For this reason, all employers with breastfeeding employees should conduct a risk assessment.

If the work gives rise to a risk that cannot be mitigated the employer must temporarily adjust the working conditions or the working hours. If this is not feasible, the employee must be transferred to other work, and if such is not feasible the employee must be placed on health and safety leave. Equality legislation would indicate that reasonable accommodation must be made so as to retain the employee in her role, and to avoid leave. Such accommodation could be as simple as the use of a private space to express milk or feed, and enough time to do so.

The Equal Status Act 2000 prohibits any discrimination or harassment based on gender or family status which includes breastfeeding, so employers should ensure that all staff are made aware that breastfeeding workers are protected from any adverse comments or treatment in relation to their feeding.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business on ensuring that you are providing a family friendly workplace.

By Lisa Quinn O’Flaherty, solicitor at Fitzsimons Redmond

Are you covered? Business interruption insurance and COVID-19

We are all too aware that COVID-19 has had catastrophic financial effects on many Irish Businesses. The first place companies should look to is their specific insurance policy to ascertain if they actually have cover for the financial losses incurred as a result of the COVID-19 disruption/interruption.

Insurance cover – general

In general insurance indemnifies you for the unexpected. The basic concept of insurance is that one party, the insurer, will guarantee payment for an uncertain future event. The other party, the insured or the policyholder, pays a premium to the insurer in exchange for that protection on that uncertain future occurrence.

In basic terms, insurance policies are contracts. They are defined in scope and breadth and are designed to cover losses arising in a specified set of circumstances. All insurance policies include strict terms and policies and you, as a business and policy holder must familiarise yourself with them.

Insurance documents are specific and it is important that you read the detail provided in the policy terms and conditions. Insurance does not provide a financial safety net to cover losses which are not specified under the policy.

On examination, the majority of policies clearly indicate in terms of what is or is not covered for the purpose of business interruption.

Different types of cover

The insurance industry is made up of different types of insurance companies offering their services in different areas. It is generally broken into life and non- life policies.

Businesses require special types of insurance policies that insure against specific types of risks faced by a particular business. For example, if your business is closed because of a pandemic you will suffer financial loss. You will first need to check if you have business interruption cover and what actual cover you have for possible eventualities, such as pandemics.

There are also insurance policies available for very particular needs, such as kidnap and ransom, medical malpractice, and professional liability insurance. Even here, strict terms and conditions apply and if you are found to be reckless, exemptions may apply.

Business interruption cover

In general, business interruption insurance covers losses incurred by a business as a result of a disruption caused by an “insured peril”. This type of cover generally requires an element of damage to property, for example fire, flooding, structural damage or storm damage.

What you will be looking for is whether the “insured peril” in your policy covers a virus. The policy wording will point to what is covered. Some more specific policies may expressly cover losses caused by communicable or infectious diseases. On the other hand some policies specifically exclude business interruption cover for a virus on a global or local scale. The risk can be unquantifiable and impossible to cover.

The Irish Central Bank and COVID-19

The Central Bank has issued a number of statements in respect of how regulated insurance firms should treat businesses in light of the significant economic disruption caused by the COVID-19 public health emergency.It has communicated with the insurance companies requiring them to take account of the challenging situation in which many businesses find themselves and has put forward consumer-focused solutions for insurance payment breaks, policy rebates and claims in light of the emergency.

In relation to insurance claims, the Central Bank stated in June 2020, “ firms must ensure that any settlement offer made to you is fair, takes into account all relevant factors and represents the firm’s best estimate of your reasonable entitlement under the policy. Firms must ensure that they handle claims effectively and properly. Although we expect that most policy wordings are clear in terms of what cover is provided and what is excluded, where there is a doubt about the meaning of a term, the interpretation most favourable to you should prevail. Firms must ensure that claims are appropriately assessed and where there is insurance cover in place that your claim is accepted and paid promptly”.

Where a claim is made because a business has closed as a result of a Government direction due to contagious or infectious disease, the Central Bank is of the view that that the recent Government advice to close a business in the context of COVID-19 should be treated as a direction. This is a view that has also been set out by the Minister for Finance, Public Expenditure and Reform. Firms must ensure that claims are appropriately assessed and where there is insurance cover in place that claims are accepted and paid promptly.

Importantly, in March 2020, The Central Bank of Ireland advised insurance companies that the interpretation of any ambiguous clauses surrounding policy cover for COVID-19 related claims should be read in favour of the consumer.

This has been interpreted in some commentary as a new concept, however it simply reaffirms the long standing rule of contra proferentem. This simply means that insurers have always been obliged to interpret ambiguous terms in favour of the insured.

The Central Bank has also requested insurers to submit detailed breakdowns of their business interruption policies including details of how policies with ambiguous language are being dealt with.

The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 -676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, would be delighted to work with you and your business in determining if your policy includes business interruption arising from COVID-19.

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