When you are asked not to come to work during COVID-19 (Coronawirus)

Lay-off

When employee is asked not to come to work as the employer is unable to provide work for you, does not have sufficient work for everybody or is temporarily closing down or is forced to close for a period of time, such a period is called a lay-off.

Employer is allowed to lay-off employee according to the Redundancy Payments Acts 1967–2014. The regulation however provides that the believe must be that this is a temporary situation and you must be notified of the lay-off before work finishes.

Short-time

There may be situation that some work is still available but there is not sufficient work to keep you full time or to keep providing you with work for the same amount as it used to be. That is known as short-time. A short-time situation arises where, due to a reduction in the amount of work to be done, your weekly pay is less than half your normal weekly pay or your hours worked are reduced to less than half the normal weekly working hours. This must be also a temporary situation and your employer must notify you before the reduction starts.

How it works

Your employer should explain to you the reason for lay off or short-time and keep you informed of the situation during this time. The best way to notify you is to use special form called RP9. If you are not properly notified you may be entitled to claim statutory redundancy form your employer.

Lay-off or short time is very often mentioned in your contract of employment or (even if not mentioned in your contract or where there is no contract of employment in writing) it may be a custom and practice in your workplace (it means employees were put on lay off or short-time in the past). Unfortunately, it is unpaid leave. You can apply for jobseeker’s benefit or jobseeker’s allowance.

Where you properly selected for lay off or short-time?

When selecting employees for lay off or short-time working your employer should apply the same standard of selection criteria as for redundancy. The criteria should be reasonable and applied in a fair manner. For example, the custom and practice in the workplace may be last in, first out or the contract of employment may set out criteria for selection. Under employment equality legislation, the selection must not discriminate against employees on any of the following 9 grounds: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.

If you believe you were not fairly selected and someone else should have been selected due to their shorter length of service with your employer or less skills (apply formula: I can do everything he can do, but he/she cannot do everything I am capable of) please notify that to your employer in writing and ask for rectification. You may be entitled in the future to claim unfair dismissal based or wrong selection for redundancy.

Claiming redundancy

Please note to be careful to exercise that right as COVID-19 created very uncertain times for everybody. You should seek, where possible, legal advice.

If a lay-off or a short-time situation exists and has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, you may give your employer a notice in writing of your intention to claim redundancy under the Redundancy Payments Acts 1967-2014. If the period of lay-off or redundancy has ended, you must do this within 4 weeks.

Unless your employer gives you a counter-notice within 7 days of your notice, you may be entitled to a redundancy payment provided that you qualify for redundancy. If your employer gives you a counter-notice within the allotted time, it must be to the effect that within 4 weeks of the date of your claim for redundancy, it will be possible to offer you not less than 13 weeks’ work without lay off or short time.

You should note that if you claim redundancy in this way you are considered to have left your job voluntarily and therefore you will lose any right to notice from your employer under the Minimum Notice and Terms of Employment Acts 1973-2005. However if you have been laid off and you are subsequently made redundant by your employer you do not lose your notice entitlements.

Duration of lay off or short time

If you do not wish to claim redundancy but the lay-off or short-time situation continues, the question arises as to whether it is a temporary situation. If it becomes apparent that it is no longer temporary then the situation is now a redundancy rather than a lay-off or short-time working. It is the employer who initially decides whether or not there is a redundancy situation. If there is a dispute about this it should be referred to the Workplace Relations Commission to make a decision. Again, be careful and seek legal advice as it may be different what is “temporary situation” in the times of COVID-19.

Seasonal workers

In the case of workers who have been laid off for an average period of more than 12 weeks during the 4 years prior to redundancy, the provisions relating to lay off above will not apply until the end of that average period. If you are a seasonal worker, therefore, there will normally be no question of redundancy until the usual commencement time of your seasonal work. If you are not then re-employed, the question of redundancy arises, but not until then.

Constructive Dismissal- before you resign

Constructive Dismissal

Constructive dismissal arises when you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. Your employer’s conduct must have been such that it would have been reasonable for you to terminate your contract without giving notice.

Constructive Dismissal – Employees must Exhaust Internal Procedures

A recent case in the WRC has highlighted the importance of Employees following internal grievance procedures prior to handing in their notice.

Before handing in Notice

An Employee who claims constructive dismissal without taking the relevant steps to deal with the issues within the Company will be very unlikely to succeed in the WRC. The logic behind this is that Employers need to be given a reasonable chance to rectify any issues that arise either between Employees or between Employees and Management.

A Recent Case

In the case of An Employee v A Large Retailer (ADJ00014541), the Complainant made a claim for constructive dismissal under Section 8 of the Unfair Dismissals Act, 1977. She was a long term Employee of the Respondent Company and had recently returned from maternity leave. On return she had negotiated a change to her working arrangements with the Human Resources Manager to accommodate her increased childcare obligations. Shortly thereafter a new Human Resources Manager took over and refused to comply with the agreement reached with the previous Manager and insisted that the Complainant work hours which she felt were no longer suitable for her.

In the WRC the Adjudicator found that the Company had made reasonable and appropriate measure to accommodate her ‘with an arrangement that would go some way towards meeting her preferences, while at the same time meeting the obvious requirements of the businesses’. So while the new Manager could not allow the temporary agreement to continue, he had offered her alternatives which she was not willing to consider. It was further noted that the fact that the employer ‘sought to place her on the exact same contractual terms she had prior to her leave’ was the correct approach.

Finally, the Adjudicator noted that the Complainant had failed to comply with the requirement to exhaust all internal measure before deciding to terminate her employment. For this reason it cannot be said that she had no option but to terminate her employment and therefore the claim for constructive dismissal was not well founded.

Key Point

It is very important that Employees do not hand in their notice prior to exhausting internal grievance procedures. Regardless of the Employers behaviour it will be unlikely that a claim for constructive dismissal will succeed where an Employee hasn’t made an effort to solve the matter at a local level.

Parental leave -what’s new

The Parental (Amendment) Act 2019

Parental leave is entirely separate to maternity benefit and entitles both parents to take unpaid leave from work to spend time looking after their children. Eligible parents may avail of unpaid Parental Leave additional to their paid Maternity Leave and paid statutory Annual Leave in order to assist them in raising their young families while maintaining their employment.

Parental leave can be used in a variety of ways; a continuous period of leave, two separate blocks (must be a minimum of 6 weeks each) or if your employer consents, it may be split into working days and/or hours.

Your employer cannot refuse parental leave to an eligible parent. While you are not entitled to be paid during this leave, you are still employed and all other employment rights will stand.

The Parental Leave (Amendment) Act 2019 introduces several changes to parental entitlements in this area. Prior to this amendment, eligible parents were entitled to 18 weeks of unpaid leave per eligible child and the leave had to be taken prior to the childs eighth birthday.

What’s new

The main changes introduced by the 2019 act which came into effect from the 1st of September 2019 are as follows;

  • Parents can now avail of 22 weeks of unpaid Parental Leave per eligible child (increased from 18 weeks).
  • The age of eligible children is increased from 8 years to 12 years, meaning the leave must can now be taken up to the date of the childs 12th

Further changes

From September 2020 the act will allow for 26 weeks of unpaid parental leave per eligible child. The increase is being introduced on a phased basis in order to allow employers to adapt to the change.

Ireland currently offers one of the lowest levels of Parental Leave in the E.U and these amendments aim to bring Ireland further in line with EU standards.

 

Discriminated pregnant employee wins €20,000

Wioleta began her employment on 3rd of April 2006. She has been employed to a position titled as a “Practice Administrator”, while in fact her duties were to look after the children and the house of her employer. Initially the relations were satisfying until the time Ms. Wioleta informed her employer that she is pregnant and that she faces a possibility of miscarrying this pregnancy.

Read more “Discriminated pregnant employee wins €20,000”