WHAT TO KEEP AN EYE OUT FOR…
Health and Safety Considerations
Driving for Work Purposes
Over 14,000 road collisions between 2008 and 2011 may have been work related. The figures include as many as 4,672 vans, trucks and buses. A further 9,427 collisions involving private cars could also have been work related.
Driving for work includes any person who is driving on the road as part of their work, either in:
Commuting to work is not generally classified as driving for work, except where the Employee’s journey starts from their home and they are travelling to a work location that is not their normal place of work.
In the case of journeys taken in a vehicle (van, jeep, truck or fleet car) provided by an Employer, an Employer has a duty of care to ensure the safety of Employees using the vehicle. Employers should have appropriate policies and procedures in place to ensure safety when Employees drive a work-provided vehicle or drive their own vehicle for work.
Driving for work involves a risk not only for Employee’s, but also for fellow Workers and members of the public, such as pedestrians and other road users. Every Employer or self-employed person, must, by law, manage the risks that may arise when one or their Employees drive for work. Employers should have systems in place to ensure that Driving for Work activities are road safety compliant. Employers cannot directly control roadway conditions, but they can promote and influence safe driving behaviour and actions by their Employees.
Safe Driver
Drivers of Company cars, vans, buses and Heavy Commercial Vehicle (HCVs) are more likely to take risks and to be at fault when a driving incident occurs.
This is not just due to driving skills and attitudes. Driving for work involves specific risks because of the type of vehicles driven and the amount of time spent behind the wheel. The greater the time spent behind the wheel, the greater the exposure to risks associated with driving for work.
An Employer should check that drivers always have a valid driving licence, insurance, tax and roadworthiness certificates for each vehicle driven. In addition, it is important to check the driver’s health and medical history. Drivers have an individual responsibility for their driving behaviour and must assess their own fitness to drive. They should never drink and drive, drive when tired, or drive under the influence of drugs (either prescribed or over the counter).
Safe Vehicle
Daily vehicle pre-use checks are a simple and effective way to spot potentially dangerous issues or defects before vehicles are used. Employers and self- employed people should have a system of routine daily checks in place to ensure that vehicles are in good working order, safe and fit for purpose.
Drivers must know their vehicle capabilities and not exceed them. They should familiarise themselves with the correct operation of their vehicle.
Drivers using their own vehicle for work are responsible for its roadworthiness, motor tax, insurance and condition. The motor insurance policy must include cover for business use. The vehicle must have a valid certificate of roadworthiness (NCT or CVRT) and be serviced according to the manufacturer’s recommendations.
An Employer should have a legal duty to check that their Employee’s vehicle is safe and legal when it is being used for work and they may request documentary evidence to confirm this.
Safe Journey
Almost all road collisions involve human error, ranging from simple mistakes to deliberate dangerous and illegal behaviour. Every year people are killed in collisions in which someone was careless, reckless or in a hurry. Speed is the single biggest contributory factor in vehicle collisions.
There are some straightforward steps drivers can take to make their journey safer:
An Employer should have procedures for emergencies such as accidents or breakdowns. Ensure that drivers have the following in their vehicles:
Advantages of a well-managed driving for work programme:
Below are just some of the advantages a well-managed driving for work programme can produce.
The Organisation:
The Employees:
The Community:
Conclusion
Driving for Work purposes is a task that most Organisations will deal with at one time or another. Therefore, it is extremely important that Organisations make themselves aware of their obligations in this respect. It is best practice that all Organisations seek to be prepared by having policies in place so that all Employees will know what the rules and regulations are prior to having to drive for work purposes.
Over 14,000 road collisions between 2008 and 2011 may have been work related. The figures include as many as 4,672 vans, trucks and buses. A further 9,427 collisions involving private cars could also have been work related.
Driving for work includes any person who is driving on the road as part of their work, either in:
- A vehicle provided by their Employer,
- Their own vehicle and receives an allowance or payment from their Employer for any distances driven.
Commuting to work is not generally classified as driving for work, except where the Employee’s journey starts from their home and they are travelling to a work location that is not their normal place of work.
In the case of journeys taken in a vehicle (van, jeep, truck or fleet car) provided by an Employer, an Employer has a duty of care to ensure the safety of Employees using the vehicle. Employers should have appropriate policies and procedures in place to ensure safety when Employees drive a work-provided vehicle or drive their own vehicle for work.
Driving for work involves a risk not only for Employee’s, but also for fellow Workers and members of the public, such as pedestrians and other road users. Every Employer or self-employed person, must, by law, manage the risks that may arise when one or their Employees drive for work. Employers should have systems in place to ensure that Driving for Work activities are road safety compliant. Employers cannot directly control roadway conditions, but they can promote and influence safe driving behaviour and actions by their Employees.
Safe Driver
Drivers of Company cars, vans, buses and Heavy Commercial Vehicle (HCVs) are more likely to take risks and to be at fault when a driving incident occurs.
This is not just due to driving skills and attitudes. Driving for work involves specific risks because of the type of vehicles driven and the amount of time spent behind the wheel. The greater the time spent behind the wheel, the greater the exposure to risks associated with driving for work.
An Employer should check that drivers always have a valid driving licence, insurance, tax and roadworthiness certificates for each vehicle driven. In addition, it is important to check the driver’s health and medical history. Drivers have an individual responsibility for their driving behaviour and must assess their own fitness to drive. They should never drink and drive, drive when tired, or drive under the influence of drugs (either prescribed or over the counter).
Safe Vehicle
Daily vehicle pre-use checks are a simple and effective way to spot potentially dangerous issues or defects before vehicles are used. Employers and self- employed people should have a system of routine daily checks in place to ensure that vehicles are in good working order, safe and fit for purpose.
Drivers must know their vehicle capabilities and not exceed them. They should familiarise themselves with the correct operation of their vehicle.
Drivers using their own vehicle for work are responsible for its roadworthiness, motor tax, insurance and condition. The motor insurance policy must include cover for business use. The vehicle must have a valid certificate of roadworthiness (NCT or CVRT) and be serviced according to the manufacturer’s recommendations.
An Employer should have a legal duty to check that their Employee’s vehicle is safe and legal when it is being used for work and they may request documentary evidence to confirm this.
Safe Journey
Almost all road collisions involve human error, ranging from simple mistakes to deliberate dangerous and illegal behaviour. Every year people are killed in collisions in which someone was careless, reckless or in a hurry. Speed is the single biggest contributory factor in vehicle collisions.
There are some straightforward steps drivers can take to make their journey safer:
- allow plenty of time so the driver is not under pressure to drive at unsafe speed,
- plan and note the route before setting out,
- plan for the safest route, avoiding urban and residential areas if possible, particularly schools,
- try to use dual-carriageways and motorways where possible,
- check travel and weather information before travel and during the course of journey,
- slow down or even cancel the journey in severe weather conditions such as heavy rain, fog, high winds, ice or snow,
- always use daytime running lights,
- plan when and where the driver will take breaks. Rule of thumb is a 15 minute break for every two hours driven,
- always drive in a safe and legal manner; and
- Be courteous and considerate of all other road users when driving for work.
An Employer should have procedures for emergencies such as accidents or breakdowns. Ensure that drivers have the following in their vehicles:
- A copy of the emergency procedures,
- contact details of the person(s) to whom they should report emergencies and incidents,
- contact details of the breakdown firm and insurers their Organisation uses and any reference numbers that they may need to quote, and
- A fully-charged mobile phone to call for help if necessary. Do not use the phone while driving.
Advantages of a well-managed driving for work programme:
Below are just some of the advantages a well-managed driving for work programme can produce.
The Organisation:
- increased Employee loyalty and enhanced public image by showing commitment to Corporate Social Responsibility (CSR);
- compliance with the to the Safety, Health and Welfare at Work Act and the Rules of the Road;
- reduced likelihood of employee injury or death and subsequent sickness and dependency costs;
- increased productivity;
- savings on fuel, maintenance and repair costs by improving travel planning and driving;
- avoidance of insurance increases;
- Improvement of business's legal defence if a claim is made against it.
The Employees:
- increased safety;
- enhanced training;
- Better insight into the Company.
The Community:
- increased safety for road users (drivers, cyclists and pedestrians);
- increased safety for public and private property;
- Better connection to your business.
Conclusion
Driving for Work purposes is a task that most Organisations will deal with at one time or another. Therefore, it is extremely important that Organisations make themselves aware of their obligations in this respect. It is best practice that all Organisations seek to be prepared by having policies in place so that all Employees will know what the rules and regulations are prior to having to drive for work purposes.
SUPREME COURT TO HEAR APPEAL OVER EMPLOYERS OBLIGATIONS TO DISABLED STAFF
The Supreme Court has agreed to hear an appeal by a special needs assistant who was told, due to serious injuries suffered by her in a road accident, she could not resume her work at a special needs school.
The appeal by Marie Daly raises important issues concerning the obligations of employers towards disabled employees.
A three-judge Supreme Court, in a written determination published this week, said decisions in her case to date showed a "significant divergence of approach and outcome" in respect of an "important and difficult" legal provision - Section 16 of the Employment Equality Act 1998, enacted to give effect to the 2000 EC Directive on equal treatment in employment and occupation.
In those circumstances, it would hear an appeal, the court said. A hearing date will be fixed later.
Ms Daly was employed from 1998 by the Nano Nagle School, Listowel, Co Kerry, which provides services for 77 children with physical intellectual and behavioural challenges.
In 2010, she suffered serious injuries in a road accident leaving her confined to a wheelchair due to paraplegia.
When she sought to return to work at the school in 2011, it had her assessed by an occupational physician and occupational therapist. It was concluded, of 16 identified duties of an SNA, she was unable to perform seven.
The therapist recommended she could act as "a floating SNA" but there was no such position at the school and it was refused funding for one. The occupational physician later advised she was unfit to return to work.
After the Equality Tribunal rejected her complaint the school failed to provide reasonable accommodation for her disability so she could continue in employment, she successfully appealed to the Labour Court which awarded her €40,000 compensation.
The Labour Court decision centred on interpretation of Section 16 of the 1998 Act which provides an individual does not have to be recruited, promoted or retained in a position if they will not, or cannot, undertake the duties attached to that position. It also provides for employers to take appropriate measures to enable disabled persons to access employment unless the measures would impose a "disproportionate burden" on the employer.
The Labour Court held the school construed its duty under Section 16 too narrowly and was obliged to fully consider the redistribution of tasks among all the SNAs so as to relieve Ms Daly of those duties she was unable to perform.
After the High Court upheld the Labour Court decision, the school successfully appealed to the Court of Appeal which ruled the Labour Court's construction of Section 16 was not correct.
In his COA judgment, Mr Justice Sean Ryan said the Labour Court had not correctly applied the law to the undisputed facts. The "central reality" was Ms Daly, a remarkable person and much admired SNA, is unable to perform the essential tasks of an SNA in this school "and no accommodations put in place by the employer can change that, unfortunately".
The school had said SNAs had to work in pairs and the only option for Ms Daly to stay in employment was to get funding for a floating SNA but it had been told SNAs were provided for benefit of pupils, not staff, and a floating SNA could not be sanctioned.
The Labour Court erred in focussing on the position of Ms Daly to the exclusion of the other legitimate interests the school had to accommodate, particularly the children whose safety was a major concern, he held. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting with the employee, he said.
In her concurring judgment, Ms Justice Mary Finlay Geoghegan said Section 16 did not require an employer to retain an individual who could not perform the essential functions of a position.
The appeal by Marie Daly raises important issues concerning the obligations of employers towards disabled employees.
A three-judge Supreme Court, in a written determination published this week, said decisions in her case to date showed a "significant divergence of approach and outcome" in respect of an "important and difficult" legal provision - Section 16 of the Employment Equality Act 1998, enacted to give effect to the 2000 EC Directive on equal treatment in employment and occupation.
In those circumstances, it would hear an appeal, the court said. A hearing date will be fixed later.
Ms Daly was employed from 1998 by the Nano Nagle School, Listowel, Co Kerry, which provides services for 77 children with physical intellectual and behavioural challenges.
In 2010, she suffered serious injuries in a road accident leaving her confined to a wheelchair due to paraplegia.
When she sought to return to work at the school in 2011, it had her assessed by an occupational physician and occupational therapist. It was concluded, of 16 identified duties of an SNA, she was unable to perform seven.
The therapist recommended she could act as "a floating SNA" but there was no such position at the school and it was refused funding for one. The occupational physician later advised she was unfit to return to work.
After the Equality Tribunal rejected her complaint the school failed to provide reasonable accommodation for her disability so she could continue in employment, she successfully appealed to the Labour Court which awarded her €40,000 compensation.
The Labour Court decision centred on interpretation of Section 16 of the 1998 Act which provides an individual does not have to be recruited, promoted or retained in a position if they will not, or cannot, undertake the duties attached to that position. It also provides for employers to take appropriate measures to enable disabled persons to access employment unless the measures would impose a "disproportionate burden" on the employer.
The Labour Court held the school construed its duty under Section 16 too narrowly and was obliged to fully consider the redistribution of tasks among all the SNAs so as to relieve Ms Daly of those duties she was unable to perform.
After the High Court upheld the Labour Court decision, the school successfully appealed to the Court of Appeal which ruled the Labour Court's construction of Section 16 was not correct.
In his COA judgment, Mr Justice Sean Ryan said the Labour Court had not correctly applied the law to the undisputed facts. The "central reality" was Ms Daly, a remarkable person and much admired SNA, is unable to perform the essential tasks of an SNA in this school "and no accommodations put in place by the employer can change that, unfortunately".
The school had said SNAs had to work in pairs and the only option for Ms Daly to stay in employment was to get funding for a floating SNA but it had been told SNAs were provided for benefit of pupils, not staff, and a floating SNA could not be sanctioned.
The Labour Court erred in focussing on the position of Ms Daly to the exclusion of the other legitimate interests the school had to accommodate, particularly the children whose safety was a major concern, he held. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting with the employee, he said.
In her concurring judgment, Ms Justice Mary Finlay Geoghegan said Section 16 did not require an employer to retain an individual who could not perform the essential functions of a position.
MINIMUM WAGe SET TO BE RAISED TO 9.80 EUROS AN HOUR
The national minimum wage is likely to be increased by 25 cent to €9.80, currently, the minimum wage for adult workers is €9.55.
The recommendation comes from the Low Pay Commission, whose members reached a 'unanimous decision' on the proposal.
The Government has agreed in principle to the increase, meaning it would come into effect in January.
The Taoisaech, Leo Varadkar, said it represents the third increase in the minimum wage since the Government involving Fine Gael and the Independents came to office.
Any increase in the national minimum wage on foot of the new recommendation could benefit up to 120,000 workers.
The recommendation comes from the Low Pay Commission, whose members reached a 'unanimous decision' on the proposal.
The Government has agreed in principle to the increase, meaning it would come into effect in January.
The Taoisaech, Leo Varadkar, said it represents the third increase in the minimum wage since the Government involving Fine Gael and the Independents came to office.
Any increase in the national minimum wage on foot of the new recommendation could benefit up to 120,000 workers.
DUNNES STORES' TO APPEAL 15K PAYMENT FOR DISCRIMINATORY DISMISSAL BACKFIRES
Retail giant, Dunnes Stores' decision to appeal €15,000 awarded to an Assistant Manager who was dismissed after being on sick leave for two years has backfired.
This follows the Labour Court doubling the award made by an Adjudication Officer at the Workplace Relations Commission (WRC) to Mary Doyle Guidera to €30,000 after finding that Dunnes Stores discriminated against Ms Doyle Guidera on the grounds of her disability when dismissing her.
In the case, Ms Doyle Guidera commenced work for Dunnes in November 2003 and was dismissed by the retailer in September 2016.
Ms Doyle Guidera went on sick leave on June 9, 2014 and was dismissed from her job on September 27, 2016 regarding her “continued absence from work since June 9th, 2014”.
The dismissal letter from Dunnes went on to state that Ms Doyle Guidera, at a meeting with her employer on September 12, 2016, was “unable to provide an indication of a date of return to work in the near future. You could also not provide any new or updated medical information / opinion regarding your illness”.
Ms Doyle Guidera told the Labour Court that throughout her employment with Dunnes she was an exemplary employee.
She said that she was certified sick on June 9, 2014 “and over the succeeding period she continued to suffer from stress and anxiety.”
In January 2016, Ms Doyle Guidera’s GP sent an update to Dunnes stating that Ms Doyle Guidera suffered from a severe stress related illness and that it was not possible to predict with certainty when she would be fit to return to work.
Ms Doyle Guidera had regular meetings with Dunnes Regional Manager in January, February, April, May and June 2016 to provide updates on her condition.
In correspondence, the Regional Manager scheduled a further meeting for September 12, 2016 where he would be seeking a definitive return to work in the near future.
At the meeting, Ms Doyle Guidera presented a referral letter to specialist consultant physicians.
The regional manager took the correspondence and then left the meeting for 10 minutes. On his return to the meeting, the regional manager said that he was terminating Ms Doyle Guidera’s employment but with notice.
Ms Doyle Guidera argued that Dunnes Stores’ conclusion that she was incapable of carrying out her work was reached in the absence of impending medical advice which would address Dunnes’s request for a return to work date.
Ms Doyle Guidera also argued that Dunnes was obliged under legislation “to make whatever reasonable accommodation might be necessary to facilitate her return to work”.
Advancing its case, Dunnes stated that it was clear to its Regional Manager that Ms Doyle Guidera’s condition had not improved over the two-year period.
Dunnes argued that in fact, it appeared that Ms Doyle Guidera’s condition was worsening with additional serious and debilitating conditions emerging.
Dunnes stated that with its Regional Manager having met with Ms Doyle Guidera on seven occasions over the previous fourteen-month period, it was clear to the manager in September 2016 that Ms Doyle Guidera continued to suffer significant anxiety when visiting and being physically present in the store.
In those circumstances it appeared to Dunnes that there was no reality to Ms Doyle Guidera returning to work in the near future following the meeting in September 2016.
Dunnes stated that it was clear to Ms Doyle Guidera that Dunnes could not hold her position open indefinitely and that, when the time came, dismissal on the ground of incapacity was being considered.
In its findings, the Labour Court pointed out that a letter from Ms Doyle Guidera’s doctor in August 2016 reported that her condition had improved markedly and stated that she had been referred to a specialist.
The doctor stated in the letter that “any potential return to work will depend on the outcome of this specialist visit.”
The court found that Ms Doyle Guidera’s inability to definitively address the demand for a return to work date in September 2016 was a function of her medical advice related to her disability.
This follows the Labour Court doubling the award made by an Adjudication Officer at the Workplace Relations Commission (WRC) to Mary Doyle Guidera to €30,000 after finding that Dunnes Stores discriminated against Ms Doyle Guidera on the grounds of her disability when dismissing her.
In the case, Ms Doyle Guidera commenced work for Dunnes in November 2003 and was dismissed by the retailer in September 2016.
Ms Doyle Guidera went on sick leave on June 9, 2014 and was dismissed from her job on September 27, 2016 regarding her “continued absence from work since June 9th, 2014”.
The dismissal letter from Dunnes went on to state that Ms Doyle Guidera, at a meeting with her employer on September 12, 2016, was “unable to provide an indication of a date of return to work in the near future. You could also not provide any new or updated medical information / opinion regarding your illness”.
Ms Doyle Guidera told the Labour Court that throughout her employment with Dunnes she was an exemplary employee.
She said that she was certified sick on June 9, 2014 “and over the succeeding period she continued to suffer from stress and anxiety.”
In January 2016, Ms Doyle Guidera’s GP sent an update to Dunnes stating that Ms Doyle Guidera suffered from a severe stress related illness and that it was not possible to predict with certainty when she would be fit to return to work.
Ms Doyle Guidera had regular meetings with Dunnes Regional Manager in January, February, April, May and June 2016 to provide updates on her condition.
In correspondence, the Regional Manager scheduled a further meeting for September 12, 2016 where he would be seeking a definitive return to work in the near future.
At the meeting, Ms Doyle Guidera presented a referral letter to specialist consultant physicians.
The regional manager took the correspondence and then left the meeting for 10 minutes. On his return to the meeting, the regional manager said that he was terminating Ms Doyle Guidera’s employment but with notice.
Ms Doyle Guidera argued that Dunnes Stores’ conclusion that she was incapable of carrying out her work was reached in the absence of impending medical advice which would address Dunnes’s request for a return to work date.
Ms Doyle Guidera also argued that Dunnes was obliged under legislation “to make whatever reasonable accommodation might be necessary to facilitate her return to work”.
Advancing its case, Dunnes stated that it was clear to its Regional Manager that Ms Doyle Guidera’s condition had not improved over the two-year period.
Dunnes argued that in fact, it appeared that Ms Doyle Guidera’s condition was worsening with additional serious and debilitating conditions emerging.
Dunnes stated that with its Regional Manager having met with Ms Doyle Guidera on seven occasions over the previous fourteen-month period, it was clear to the manager in September 2016 that Ms Doyle Guidera continued to suffer significant anxiety when visiting and being physically present in the store.
In those circumstances it appeared to Dunnes that there was no reality to Ms Doyle Guidera returning to work in the near future following the meeting in September 2016.
Dunnes stated that it was clear to Ms Doyle Guidera that Dunnes could not hold her position open indefinitely and that, when the time came, dismissal on the ground of incapacity was being considered.
In its findings, the Labour Court pointed out that a letter from Ms Doyle Guidera’s doctor in August 2016 reported that her condition had improved markedly and stated that she had been referred to a specialist.
The doctor stated in the letter that “any potential return to work will depend on the outcome of this specialist visit.”
The court found that Ms Doyle Guidera’s inability to definitively address the demand for a return to work date in September 2016 was a function of her medical advice related to her disability.
CAFE WHICH DISCRIMINATED AGAINST PREGNANT WORKER ORDERED TO PAY 15K DAMAGES
A coffee house and restaurant here has been ordered to pay a sacked assistant manager €15,000 after it was found to have discriminated against her when sacking her while pregnant.
In the case at the Workplace Relations Commission (WRC), WRC Adjudication Officer, Ewa Sobanska found that the coffee house discriminated against its pregnant employee in failing to afford her with the opportunity to return to work after a period of illness while she was pregnant.
The WRC has made the award in spite of the coffee house manager stating that during her 25 year career with the business there were about 22 babies born to staff members and there has never been any discriminatory treatment.
The business employs 22 staff and the complainant in the case told the WRC that she commenced work with the coffee house as an assistant manager on May 15 2017.
The woman became unwell and obtained a sick cert from her GP from the 7 July 2017 until 21 August 2017.
She was unfit for work “due to medical illness” and “due to migraines” and she stated that on July 22 2017 she informed the coffee house manager that she was pregnant.
She stated that the coffee house manager was happy for her, congratulated her and was nice and polite.
The worker said that she was told to take as much time as she needed and come back to work when she was fit.
The asst manager said that she met with the manager on August 22 2017 and advised that she was now fit to return to work.
At the meeting, the asst manager asked if it would be possible for her to start work at 9.15 - 9.30am and not at 8am as done previously.
She said that her family circumstances had changed and she was now required to drop her son to school every morning.
The asst manager met again with her manager on August 24 and the asst manager was told that circumstances had changed and the coffee house was letting her go as she was no longer flexible and she did not pass her probationary period.
The asst manager was surprised to hear that as she was not informed about the probationary period.
She pointed out that she has been seven years in her previous job and would not have left it had she known about the probation.
The coffee house denied that the asst manager had been dismissed due to her pregnancy and said she was dismissed because she was no longer flexible in terms of hours of work.
As a mother of five, the manager told the WRC hearing that she understood that work might become more difficult for the asst manager as the pregnancy progressed.
The manager said that she informed the asst manager on August 24 that because she was not available for work as per arrangements discussed at the interview, the company needed to let her go.
The manager stated that her colleague’s request to alter her hours of work was not related to her pregnancy.
In her findings, Ms Sobanska found that following the assistant manager’s attempts to return to work after a period of sick leave the decision was made by the coffee house “rather swiftly” to dismiss the her.
Ms Sobanska noted that the asst manager requested a ‘termination letter’ and asked for a reason for dismissal but was not given one.
Ms Sobanska stated that despite the coffee house’s earlier offer of part-time or other flexible arrangements, following the asst manager request on August 22 the employer made no effort to consult with the employee and explore the matter further.
Ms Sobanska also stated that it is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy.
She said: “Having regard to the totality of the evidence before me I am of the view that the Complainant has made out a prima facie case of discrimination on the gender ground.”
Ms Sobanska said that the employer was unable to provide exceptional circumstances not related to pregnancy why the worker was sacked and ordered the coffee house to pay the €15,000 award.
In the case at the Workplace Relations Commission (WRC), WRC Adjudication Officer, Ewa Sobanska found that the coffee house discriminated against its pregnant employee in failing to afford her with the opportunity to return to work after a period of illness while she was pregnant.
The WRC has made the award in spite of the coffee house manager stating that during her 25 year career with the business there were about 22 babies born to staff members and there has never been any discriminatory treatment.
The business employs 22 staff and the complainant in the case told the WRC that she commenced work with the coffee house as an assistant manager on May 15 2017.
The woman became unwell and obtained a sick cert from her GP from the 7 July 2017 until 21 August 2017.
She was unfit for work “due to medical illness” and “due to migraines” and she stated that on July 22 2017 she informed the coffee house manager that she was pregnant.
She stated that the coffee house manager was happy for her, congratulated her and was nice and polite.
The worker said that she was told to take as much time as she needed and come back to work when she was fit.
The asst manager said that she met with the manager on August 22 2017 and advised that she was now fit to return to work.
At the meeting, the asst manager asked if it would be possible for her to start work at 9.15 - 9.30am and not at 8am as done previously.
She said that her family circumstances had changed and she was now required to drop her son to school every morning.
The asst manager met again with her manager on August 24 and the asst manager was told that circumstances had changed and the coffee house was letting her go as she was no longer flexible and she did not pass her probationary period.
The asst manager was surprised to hear that as she was not informed about the probationary period.
She pointed out that she has been seven years in her previous job and would not have left it had she known about the probation.
The coffee house denied that the asst manager had been dismissed due to her pregnancy and said she was dismissed because she was no longer flexible in terms of hours of work.
As a mother of five, the manager told the WRC hearing that she understood that work might become more difficult for the asst manager as the pregnancy progressed.
The manager said that she informed the asst manager on August 24 that because she was not available for work as per arrangements discussed at the interview, the company needed to let her go.
The manager stated that her colleague’s request to alter her hours of work was not related to her pregnancy.
In her findings, Ms Sobanska found that following the assistant manager’s attempts to return to work after a period of sick leave the decision was made by the coffee house “rather swiftly” to dismiss the her.
Ms Sobanska noted that the asst manager requested a ‘termination letter’ and asked for a reason for dismissal but was not given one.
Ms Sobanska stated that despite the coffee house’s earlier offer of part-time or other flexible arrangements, following the asst manager request on August 22 the employer made no effort to consult with the employee and explore the matter further.
Ms Sobanska also stated that it is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy.
She said: “Having regard to the totality of the evidence before me I am of the view that the Complainant has made out a prima facie case of discrimination on the gender ground.”
Ms Sobanska said that the employer was unable to provide exceptional circumstances not related to pregnancy why the worker was sacked and ordered the coffee house to pay the €15,000 award.
WORKERS COULD HAVE 6% OF PAY PUT INTO MANDATORY PENSION
More than 850,000 workers will have up to 6 per cent of their gross pay deducted and put into an occupational pension from 2022, under proposals unveiled on Wednesday.
The mandatory pension scheme is being introduced to address a stubbornly high level of workers who face retirement on nothing but the State pension. Just 35 per cent of the private sector workforce has private pensions coverage.
Under this proposal, which has been put out to public consultation, the Department of Employment Affairs and Social Protection suggests that all PAYE workers between the ages of 23 and 60 earning more than €20,000 will be automatically enrolled in a pension in 2022 if they are not already signed up to a scheme.
They would pay 1 per cent in the first year, a figure that will rise by one percentage point every year until 2027 when they would be contributing 6 per cent.
The contributions would be matched by their employer up to a salary of €75,000 and the State would contribute €1 for every €3 saved by the scheme member.
In this scenario, from 2027, workers would see a total of 14 per cent of their gross pay going into a fund for their retirement.
The department says that Ireland is one of only two OECD countries without a mandatory earnings-related element to retirement saving.
The contribution levels are contained in a “strawman proposal” – a fleshed-out draft proposal of how department officials think auto enrolment could work. It is designed to generate discussion and the department insists it will be revisited in the context of responses to the consultation.
Employees, under the proposal, would choose from among four registered providers, selected by a new Central Processing Authority, to manage their pension and select the level of risk they wish to accept. Management charges for the funds would be limited to 0.5 per cent of funds invested. If they don’t choose a provider, one would be allocated to them.
“It is increasingly evident that most Irish workers are not saving enough, or indeed at all, for their retirement years,” said Minister for Social Protection Regina Doherty. “Many people will be faced with a serious reduction in their living standards when they retire – a fall in income they clearly do not want.”
The consultation document says, however, that it has sought to ensure that only those people who need the additional savings will be enrolled. It accepts that, for some, the state pension and other state benefits like the household benefits package, may provide enough income in retirement.
The Minister said that automatic enrolment was “perhaps the most fundamental policy reform in a generation in terms of retirement savings provision”.
Ms Doherty said the Government remained committed to the State pension, which “will remain the bedrock of the pension system and a protection against poverty”.
“However, the State pension is not designed or intended to deliver full income adequacy in retirement,” the Minister said.
Brokers Ireland, which represents almost 1,250 broker firms, welcomed publication of the consultation document. It said the contribution levels outlined were “about right” but called for its speedier implementation.
“Effectively, we’re talking about 10 years from now before auto-enrolment would be fully in place,” said chief executive Diarmuid Kelly. “A decade is a long-time in anyone’s life and such a gap in terms of proper pension planning and investment can have a very serious impact on income in retirement.”
Labour’s finance spokeswoman and former minister for social protection Joan Burton said she believed there was some reluctance in Fine Gael to expedite the scheme.
“I think there is a fear there that some people might see this as a tax,” she said. “It’s not a tax but it is another contribution.”
Ms Bruton said that much of the legwork on the pension structure had been completed during her time in office and questioned the need to delay its introduction.
“I had left all of the outline of a programme to actually start this by 2021 so I am quite disappointed,” she said.
She also questioned the “relatively low” proposed State contribution of €1 in every €3, saying it would probably have to be higher in order to be sufficiently attractive.
International experience and research has demonstrated that personal contributions of around 6 per cent of gross pay would be necessary, she said, adding that a target of individuals securing about half of their net income at retirement would be the “gold standard”.
Self-employed people, those earning less than the €20,000 threshold and people falling outside the prescribed ages could opt in.
Workers will be able to opt out but, under the worked example presented in the consultation paper, only between seven and eight months after being signed up. After that, they are committed to the scheme although they can halt contributions.
The Government is banking on the experience of similar initiatives in other countries where there has been a very low rate of opting out.
The consultation period will remain open until November 4th 2018.
The mandatory pension scheme is being introduced to address a stubbornly high level of workers who face retirement on nothing but the State pension. Just 35 per cent of the private sector workforce has private pensions coverage.
Under this proposal, which has been put out to public consultation, the Department of Employment Affairs and Social Protection suggests that all PAYE workers between the ages of 23 and 60 earning more than €20,000 will be automatically enrolled in a pension in 2022 if they are not already signed up to a scheme.
They would pay 1 per cent in the first year, a figure that will rise by one percentage point every year until 2027 when they would be contributing 6 per cent.
The contributions would be matched by their employer up to a salary of €75,000 and the State would contribute €1 for every €3 saved by the scheme member.
In this scenario, from 2027, workers would see a total of 14 per cent of their gross pay going into a fund for their retirement.
The department says that Ireland is one of only two OECD countries without a mandatory earnings-related element to retirement saving.
The contribution levels are contained in a “strawman proposal” – a fleshed-out draft proposal of how department officials think auto enrolment could work. It is designed to generate discussion and the department insists it will be revisited in the context of responses to the consultation.
Employees, under the proposal, would choose from among four registered providers, selected by a new Central Processing Authority, to manage their pension and select the level of risk they wish to accept. Management charges for the funds would be limited to 0.5 per cent of funds invested. If they don’t choose a provider, one would be allocated to them.
“It is increasingly evident that most Irish workers are not saving enough, or indeed at all, for their retirement years,” said Minister for Social Protection Regina Doherty. “Many people will be faced with a serious reduction in their living standards when they retire – a fall in income they clearly do not want.”
The consultation document says, however, that it has sought to ensure that only those people who need the additional savings will be enrolled. It accepts that, for some, the state pension and other state benefits like the household benefits package, may provide enough income in retirement.
The Minister said that automatic enrolment was “perhaps the most fundamental policy reform in a generation in terms of retirement savings provision”.
Ms Doherty said the Government remained committed to the State pension, which “will remain the bedrock of the pension system and a protection against poverty”.
“However, the State pension is not designed or intended to deliver full income adequacy in retirement,” the Minister said.
Brokers Ireland, which represents almost 1,250 broker firms, welcomed publication of the consultation document. It said the contribution levels outlined were “about right” but called for its speedier implementation.
“Effectively, we’re talking about 10 years from now before auto-enrolment would be fully in place,” said chief executive Diarmuid Kelly. “A decade is a long-time in anyone’s life and such a gap in terms of proper pension planning and investment can have a very serious impact on income in retirement.”
Labour’s finance spokeswoman and former minister for social protection Joan Burton said she believed there was some reluctance in Fine Gael to expedite the scheme.
“I think there is a fear there that some people might see this as a tax,” she said. “It’s not a tax but it is another contribution.”
Ms Bruton said that much of the legwork on the pension structure had been completed during her time in office and questioned the need to delay its introduction.
“I had left all of the outline of a programme to actually start this by 2021 so I am quite disappointed,” she said.
She also questioned the “relatively low” proposed State contribution of €1 in every €3, saying it would probably have to be higher in order to be sufficiently attractive.
International experience and research has demonstrated that personal contributions of around 6 per cent of gross pay would be necessary, she said, adding that a target of individuals securing about half of their net income at retirement would be the “gold standard”.
Self-employed people, those earning less than the €20,000 threshold and people falling outside the prescribed ages could opt in.
Workers will be able to opt out but, under the worked example presented in the consultation paper, only between seven and eight months after being signed up. After that, they are committed to the scheme although they can halt contributions.
The Government is banking on the experience of similar initiatives in other countries where there has been a very low rate of opting out.
The consultation period will remain open until November 4th 2018.
