How Do I Handle It?
I want to update my organisation’s policies and procedures to take into account recent changes to legislation, but this means making key changes to existing policies as well as introducing new polices. I am concerned about rolling out changes to policies and work practices to employees. How do I handle it?
Recent Legislative Developments
Legislative developments in recent years have meant that employers need to re-examine their policies and procedures and in many cases will need to vary or update them to take into account changes to the law.
Recent legislative developments of particular significance, that may require an update to your existing polices or the introduction of new policies include:-
1. Equality (Miscellaneous Provisions) Act, 2015
2. Protected Disclosures Act, 2014
3. Section 86, Workplace Relations Act, 2014 – Accrual of Annual Leave on Sick Leave
4. Tyco Decision – Travelling Time as Working Time
In addition to the above, further developments are on the horizon, for example, the introduction of two weeks Paternity Leave from September, 2016.
Legal Position on Variation of Policies
There is in law a distinction between a contractual entitlement, which cannot be varied without the express and informed consent of the employee, and a policy document or work practice which may be changed by the employer.
Work practices may include flexible working practices, maternity pay benefit or other procedures which are not contained in the employee’s contract of employment.
In brief, an existing contractual entitlement can only be varied with the agreement of the employee either an individual basis or by way of collective agreement. Any employer proposing to change an employee’s contract should fully consult with all affected employee or their representatives and explain and discuss the reasons for the change. Variations of a contract can be agreed verbally or in writing although it is best practice to commit any agreed changes to written form.
Where a variation in the contract has been agreed and the changes concern an item which must be included in the written statement of particulars of employment (as provided for under section 5 of the Terms of Employment (Information) Act 1994), an employer is obliged to give written notification of the change to the employee, within one month of the change taking effect.
Restructuring/ Cost cutting
Notwithstanding the above, it is recognised by the Irish Courts that there are circumstances where an employer may be forced to unilaterally vary the contract of employment for commercial efficacy purposes. The employer would in such circumstances need to demonstrate that the unilateral variation of the contract was objectively justifiable.
Information and Consultation with Employee Representatives
The Labour Court has seen a proliferation of claims over the past number of years from employees and unions resisting particularly onerous restructuring measures. Even where terms and conditions of engagement are being varied for cost cutting purposes, the Labour Court has been very slow to endorse such changes in circumstances where employees have not at the very least been consulted in a meaningful way.
Drafting and Roll out the Amended Policy
If you choose to amend your policies, we would recommend that you consider consulting with your employees on any key changes or where the change will see the removal of a benefit.
Polices should be drafted to take into account legislative changes as well as best practice developed through case law and appropriate codes of practice.
All employees must be notified of any key changes to the policy and be furnished with the policy.
The following are some practical tips for rolling out a new or amended policy:
• If you amend a specific provision of a policy you should specifically draw the employees’ attention to the new provision. All employees should be notified of the change and be provided with a copy of the policy.
• You should ask the employees to review the policy and to make contact with HR with any comments or queries they may have in relation to the amendments.
• The employees should also be notified that if they do not raise any queries within seven days they will be deemed to have accepted the terms of the new policy.
• One way to roll out a new policy is to email the updated policy to all employees. You should select the receipt confirmation facility in outlook when sending the email and specifically request that each employee confirm by way of return email that they have read and understood the policy. If possible, a copy of the confirmation should be printed and stored on the employee’s personnel file.