In preparation for the festive season, Sandra Masterson Power and Patrick Watters provide a seasonal review of the typical employment law and workplace issues commonly arising at this time of the year in their 12 Updates of Christmas article.
1. Acceptable Usage Policy
An unfortunate reality for many local businesses is the fact that most Christmas shopping will be done online this year. To prevent such distractions from impacting employee productivity, and to maintain required security standards, employers should implement a clear Acceptable Usage Policy which details the parameters of email, intranet and internet usage. Where already in place, employers should review and revise their existing policies. Firm wide communication should then issue reminding employees of their ongoing obligations and the intended use of workplace devices during the Christmas season.
2. Virtual Christmas Celebrations
Most organisations have abandoned all aspirations of hosting Christmas celebrations this year. For those creative employers who have devised solutions, such as hosting virtual events, employers can still be held liable for incidents which occur to employees during these celebrations. To prevent this, employers should ensure that they have up to date policies addressing any issues that might arise such as a robust dignity at work (dealing with bullying, harassment and sexual harassment) and a social media policy. Employees should be reminded of these policies in advance of scheduled festivities and be clear as to the behaviour expected of them.
3. Social Media
Virtual events and remote networking seminars have become a feature of 2020. Whilst this method of corporate promotion and publicity is welcomed by businesses alike, they are not immune to controversy. Improper usage of far reaching platforms like LinkedIn, Facebook and Instagram pose significant potential for eroding hard earned professional images. To mitigate exposure, employees should be clearly informed of what they can and cannot promote online on behalf of their employer. If not already in place, a robust Social Media Policy should be introduced which addresses the remit of social media within the workplace. Employer's with existing policies should review them to ensure they reflect the new working circumstances.
Whistleblowing, otherwise referred to as raising a Protected Disclosure, is one of the most effective ways of drawing attention to and/or stopping wrongdoing in the workplace. Following the introduction of the Protected Disclosures Act 2014, fraud and false accounting has evolved to become one of the central focuses of Protected Disclosures across all commercial sectors. As we approach year end, it is important that employees have a clear understanding of the importance of whistleblowing awareness and a clearly defined internal pathway for reporting such concerns.
5. Staff Restructures
An unfortunate consequence of the Covid-19 pandemic is the need to consider staff restructures as a means of addressing the stagnation/deterioration in numerous industry sectors. Tough decisions may need to be made now to ensure business continuity in the New Year and employers may need to consider redundancies, on a voluntary or statutory basis. Where staff are laid off, they are prevented from being able to claim redundancy under a further extension of the suspension period to March 2021.
6. Absence Management
Habitual short absences can greatly impact a business' output and become a frustrating distraction for employers to manage. With the approach of Christmas holidays, employees may be more inclined to take sick days on an ad hoc basis. While it may be hard not to question the authenticity of some absences, unfortunately, obtaining enough evidence to support such suspicions is notoriously difficult and employers are often limited in terms of commencing investigatory actions. To combat this, employers should ensure they have in place a robust sick leave policy which is implemented in a fair and consistent manner. Employers should review this policy periodically to re-familiarise themselves with their own administrative obligations (e.g. conducting back to work interviews). Employees should also be reminded of their duties under this policy (e.g. submitting medical certificates in support of such absences) by way of regular updates.
7. Holiday Entitlements
The Covid-19 pandemic scuppered the majority of holiday plans. Many employers have a proportion of their workforce whose leave entitlements remain untaken. Most employers operate an annual leave year running from 1 January to 31 December, where employees enjoy a "use it or lose it" period within which to take their annual leave entitlement. This means that if an employee reaches the end of their annual leave year without taking their full entitlement, they will lose it and will not be able to carry it forward into the next year. This approach is only permitted where employees have had the opportunity to use their annual leave entitlement and where the employer has encouraged employees to take it. While there is no statutory right to carry over annual leave into the following year, given the unprecedented events of 2020 employers should adopt a flexible and practical approach going into 2021. A reasonable solution would be to consider increasing the number of days which may be carried over into 2021.
8. Work Related Stress
Christmas can be a difficult time of year for everyone, notwithstanding the unprecedented changes to the way we work, including the extra stressors and strains that have been placed on employees over the last number of months. While there has been a huge growth in engagement on wellbeing within the workplace, employers are reminded to be conscious of the potential for workplace stresses and are encouraged to implement their sick policy in a fair and reasonable manner. Most organisations have supports mechanism in place, and employers should continue to promote a preventative approach, particularly around this time of year, by reminding employees of the various Employee Assistance Programs available to them.
9. Departing Employees
As the economy re-starts with the easing of Covid-19 restrictions, employee turnover is likely to increase. The New Year is usually when employees seek to remarket themselves and employers will be particularly conscious of this time of year as loosing key employees can prove to be a costly endeavour. Aside from the obvious loss of financial resources, employers may suffer from a failure of confidence amongst clients who can negatively perceive the loss of staff members. While employers cannot prevent employees leaving, they can check their contracts of employment for non-compete and non solicit clauses which may restrict the competitiveness of a departing employee. Employers should review existing restrictive covenants for key employees and update those covenants, as necessary, to ensure that their interests are appropriately protected. Where required, employers should seek advice on the enforceability of such covenants should the need arise.
10. Remote Working Policy
Covid-19 has obliterated most preconceived opinions, both positive and negative, towards remote working practices. Remote working is now the established norm supported by technological developments and widespread connectivity. While the post Covid future remains uncertain, one thing is clear is that we will not be returning to the office anytime in the immediate future. To address this, employers should review their current policies. If not already in place, employers should introduce a Remote Working Policy. The Health and Safety Authority recently published a detailed guidance note on working from home which is a welcomed aide when constructing a Remote Working Policy. Employers should refer to and seek to incorporate this guidance note into their businesses as it is clear a blended approach, between remote and on-site working is likely to become the norm in 2021.
11. Extension to Parental and Parent's Leave
This year has seen considerable changes to parental leave entitlements consistent with a European wide initiative to modernise an existing EU legal framework regarding work-life balance arrangements. From 1 September 2020, employee entitlements under the Parental Leave Acts, 1998-2019 have been extended to afford employee parents up to 26 weeks' unpaid leave from work to look after their children on the provision of 6 weeks' notice to their employer. In addition, Budget 2021 has set out a planned extension to Parents’ Leave. Parents' Leave currently provides for 2 weeks’ leave during the first year of their child’s life, or in the case of adoption, within 1 year of the placement of the child. This recently announced extension will increase Parent's Leave entitlement from 2 to 5 weeks and is expected to come into force in in April 2021. While these amendments may initially prove burdensome for employers, they are very much welcomed by employees and will assist in a better sharing of caring responsibilities.
12. Wage Subsidy
The Employment Wage Subsidy Scheme ("EWSS") replaced the TWSS earlier this year and is expected to be made available to employers impacted by Covid-19 up until 31 March 2021. Employers seeking to avail of this scheme must register separately under the EWSS via e-registration. Prior to doing so, employers must possess valid tax clearance certificate and their business must be experiencing a 30% reduction in turnover or customer orders between the period of 1 July to 31 December 2020 due to Covid-19. During the EWSS, eligible employers will receive a flat rate subsidy payment from Revenue, and it will apply a reduced PRSI rate in respect of eligible employees.