NEW BUSINESS:Regulations related to hiring staff mean that it is crucial to read up before employing anyone It makes commercial sense to issue a full contract of employment and reserve the right to make deductions from an employee's pay.
Getting a company up and running is a risky business - raising finance, selling the idea, marketing your product or service, winning new customers. Nothing is guaranteed. But expanding your business also presents problems of its own.
A key part of any business expansion is hiring staff, but that can prove to be a minefield for the company owner coming to it for the first time.
"Taking on the responsibility of hiring someone is a huge deal and, more often than not, formalising a relationship with an employee is at the bottom of the endless to-do list," says Melanie Crowley, partner with Mason Hayes and Curran.
"However, your staff is your most important asset and taking care of some basic house-keeping and employee-related issues from the very outset will pay dividends down the road."
One of the key things for employers to remember when recruiting is that they are subject to equality legislation.
The Equality Acts of 1998-2007 prohibit employers and potential employers from discriminating against an individual on any one of nine grounds: gender, family status, marital status, sexual orientation, race, age, religion, disability or membership of the Travelling community. "Employers should bear these in mind in formulating advertisements, in conducting interviews and in their ultimate decision as to whether or not to employ," explains Crowley.
Many employers try to engage individuals as contractors or consultants instead of as employees in order to avoid the quite onerous requirements of employment law.
"However, the courts and tribunals in Ireland generally take the view that the actual nature of the relationship, rather than the title attached to it, is what is important," says Crowley.
"In determining whether an individual has been engaged as a contractor or has been employed, the courts and tribunals will apply a number of tests, including a consideration of the amount of control exercised over the individual, the equipment/facilities used or provided, the risk of profit or loss, whether the work can be subcontracted, and whether or not an individual will be considered to be an employee is all dependent on the circumstances of a particular case."
Contracts of employment do not have to be in writing in order for them to exist, according to Crowley. A contract of employment may be express or implied, oral or in writing. However, the Terms of Employment (Information) Acts 1994-2001 provide that an employer must set out in writing certain minimum terms and conditions of employment to an employee within two months of commencement of employment. These minimum terms include the names and addresses of the parties, details of the place of work, the rate of remuneration and details of when and how it will be paid, details of the title of the position or the nature of the work, details of leave and rest break entitlements, detail of any pension or sick pay scheme in place, the period of notice an employee is required to give and entitled to receive and details of any collective agreement which may apply to the employee.
"It makes commercial sense to issue a full contract of employment and, for example, reserve the right to make deductions from an employee's pay and vary the terms of an employee's employment, get data protection consent, provide for lay off or short-time and include confidentiality provisions and restrictive covenants, if appropriate," advises Crowley.
It is absolutely vital to ensure that certain very basic policies and procedures are in place, according to Crowley. At the very least, an employer should ensure that there is a disciplinary policy and procedure; a grievance policy and procedure; and a bullying and harassment policy and procedure in place.
"Naturally, employers may need other policies and procedure," says Crowley. "For example, if employees have access to email and the internet, an acceptable usage policy is vital. In addition, policies in respect of sickness absence, cars and expenses are useful."
The Safety, Health and Welfare at Work Act 2005 applies to all places of work and requires all employers to conduct a risk assessment of workplaces. "Have a professional conduct the risk assessment and prepare a safety statement. Money spent on health and safety will be saved in insurance premia and, ultimately, in any potential litigation," says Crowley.
Under the terms of the Organisation of Working Time Act 1997, employers are obliged to keep a record of the number of hours worked by employees on a daily and weekly basis; a record of leave granted to employees in each week by way of annual leave or in respect of a public holiday and payment made in respect of that leave; and a weekly record of the starting and finishing times of employees.
FURTHER INFORMATION
Accessing information on employment rights wasn't always easy - the Department of Enterprise, Trade & Employment's website was not the most user-friendly. This has changed with the formation of the National Employment Rights Authority (NERA).
Its website (employmentrights.ie) provides an informative guide to basic employment rights. You can also find a checklist of records employers are required to hold. Otherwise, most legal firms have specialists in employment law, while Isme (isme.ie) has published A guide to employment law - an employer's handbook.
