Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on new legislation introduced by the Government.

The Employment (Miscellaneous Provisions) Bill was introduced on the 7th December 2017 and, while it is to be welcomed, there are certainly some issues with the bill.

Information to be furnished to employees

A new Subsection 1 of Section 3 is introduced which provides that within 5 days after commencement of employment an employer must furnish as statement setting out:

a) The full name of the employer and the employee;

b) The address of the employer in the State or, where appropriate, the address of the principle place of the business or the registered office; of the employer;

c) In a case of temporary contract the expected duration thereof and, if it is a fixed term contract, the date on which it will expire;

d) The rate of method of calculating the employees’ wages or salary for the purposes of the National Minimum Wage Act, 2000;

e) The number of hours which the employee is reasonable expected to work for each normal working day and for each normal working week.

There are some saving provisions for employer where there is a failure due to an error or omission or a clerical mistake or accidently made in good faith.

An employer who does not provide such statement within 1 month shall be guilty of an offence. This would be a Class A fine or imprisonment for a term not exceeding 12 months or both. The Bill proposes that such a prosecution can only commence within 12 months from the date of the offence. The difficulty with this is that many employees, because of the provisions of the Unfair Dismissal Legislation, will be extremely slow to issue such complaints to the WRC which could result in a prosecution. While there are provisions in the Bill to prevent penalisation, it would have been better if there was a longer period for commencing prosecution.

Section 10 of the Bill provides for protection against penalisation. The Bill helpfully provides that an employee is protected from being penalised or being threatened with penalisation. When an employee is penalised or threatened with penalisation then in those circumstances compensation can be awarded. However, the level of compensation under Section 11 is a maximum of 4 week remuneration.

This level of compensation for an employee being penalised or threatened with penalisation is unlikely to be a deterrent. While an employee can take a claim under the Unfair Dismissals Act if they are dismissed the very fact of having a situation where an employee can be penalised minimal compensation means that the new provision is effectively toothless. The problem with an Unfair Dismissal claim is that if an employee has only been in an employment for a short period of time, raises the issue and is dismissed and brings a claim under the Unfair Dismissal Legislation they will be limited to their economic loss. However to bring a claim under Unfair Dismissal they must have 12 months service. So if an employee with less than 12 months service complains and are dismissed the maximum compensation for that penalisation is 4 weeks wages. Normally, for claims under, for example, Organisation of Working Time Act or the other pieces of Employment Legislation the level of compensation is up to 2 years wages. Equally, in relation to the issue of this information to be furnished, which the Minister has designated to be important information to be furnished within 5 days, again, if it is not furnished the maximum compensation is 4 weeks compensation.

The Bill as introduced is very much a half-hearted effort to deal with a significant issue of employees not being furnished with relevant information. Equally, the issue relating to penalisation is effectively toothless.

Banded Hours Contracts

The issue in relation to Zero Hour Contracts has been creating difficulties. The provisions of Section 14 of the Bill provide that a contract for a certain number of hours must be greater than zero. Where an employee is not required to work in a particular week, payment will be 25% of the contracted hours or if the employee is required to make themselves available for work 25% of the hours of such work that was done for the employer that week. Where the employee is not required to work then it will be the lower of either of the above or 15 hours. Where there has been a situation where the employee is required to work for the employer in a week at less than the percentage of hours referred to above and that percentage of hours is less than 15 hours then the pay for that week would be calculated on the basis that he or she works for the employer in that week the percentage of hours referred to above and the minimum payment should be calculated at three times the national hourly minimum rate of pay or three times the minimum hourly rate of remuneration set out in a Regulation Order. Where an employee’s contract of employment does not reflect a number of hours worked per week by the employee or the reference periods then in those circumstances the employee will be entitled to have banded hours of work provided.

The banded hours are between1 to 10 hours, 11 to 24 hours, 25 to 34 hours and 35 hours and over. Where an employee believes that they should be placed on such a banded hours they must inform the employer and request same in writing to be so placed. The employee then must be placed in a band or weekly working hours from the date that is not greater than two months from the date the request is made. The band will depend on the average number of hours worked by the employee during the reference period. Once an employee is placed on the banded they are entitled to work the hours specified in that band for the following 18 months.

Where a claim is brought, the Adjudication Officer or the Labour Court on appeal may declare the complaint well or not well founded and where the decision is made that the complaint is well founded require the employee to comply with this Section and place the employee on the appropriate band of hours.

The Legislation does not however provide that the employee is entitled to be back dated to the time that they put the complaint in. It means that the employee would only get these banded hours going forward and would not be compensated in a period between the time that they put in a complaint to the WRC and the decision of the WRC issuing. The legislation also provides that a decision may be appealed to the Labour Court. In a case where either party brings an appeal to the Labour Court it would appear that in those circumstances it would only be from the date of the Labour Court decision. As the Labour Court is very efficient in hearing cases when you take the time that it would take to run a case through the WRC currently and then up to the Labour Court this could be a 6 month delay period. It could even be longer because of the delays of getting decisions from the WRC. The Labour Court scheduled cases very quickly and issues decisions very quickly. However, this is a defect in the Bill.

In addition there is no provision for paying compensation to the employee for not having a banded hours contract.

This may well be a defect in the Legislation in that from an employers’ point of view the answer would simply be - why would they bother giving the employee the banded hours contract and rather let them bring their claim to the WRC as there is no penalty or detriment from the employers’ side for dragging matters out.

In relation to the issue of penalisation, if an employee is penalised for having brought a claim the in those circumstances the compensation will be compensation under the Organisation of Working Time Act which is up to 2 years wages.

While the concept of the Bill is to be welcomed the reality of matters is that this is not the breakthrough that might have been thought would occur when matters were originally announced. While the provisions of the Bill are to be welcomed the protections for employees in the Bill are limited except in the case of penalisation. Of course in relation to the amendments to the Terms of Employment (Information) Act, as regards furnishing the relevant information, the level of compensation for any penalisation is minimal.

The Bill is very much a half hearted attempt to rectify defects currently. The Bill unless significantly amended will be effectively toothless, except in very limited circumstances, and will encourage employees particularly as regards branded hours claims to simply seen matters through the WRC and Labour Court simply to delay matters. This is an appalling potential waste of state resources.