The General Data Protection Regulation (GDPR) will come into force on 25th May 2018 changing the way we process data forever. The aim of the GDPR is to put greater protection on the way personal data is being processed for all EU citizens. Personal data can be anything from a name, an email address, PPS number, bank details etc so as you can imagine employers process a huge amount of personal data on a daily basis. So how will the GDPR affect employers in terms of processing employee data?
Data in the employment context, will include information obtained from an employee during the recruitment process (regardless of whether or not they eventually got the job), it will also include the information you hold on current employees and previous employees. All this information may be saved in hard copy personnel files, held on HR systems or it could be information contained in emails or information obtained through employee monitoring.
Under GDPR your employee’s will have increased rights around their data. These rights will include:
Employee Self Service
Under the GDPR legislation, where possible employers should be able to provide self-service remote access to a secure system which would allow employees view and manage their personal data online 24/7. Furthermore, the cloud functionality will improve your payroll processing with simple email distribution, safe document upload, easy leave management and improved communication with your employees. By introducing a self-service option, you will be taking steps to be GDPR ready.
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Those of you who were on any of our recent GDPR webinars will be aware that data controllers (e.g. a payroll bureau client) need to be amending their contracts with any data processors (e.g. the payroll bureau) to accommodate the new requirements under the GDPR.
For those of you who did not get to attend our webinars here is a brief overview.
Whenever a data controller uses a data processor there needs to be a written contract in place. The contract is important so that both parties understand their responsibilities and liabilities. The GDPR sets out certain information which needs to be included in the contract.
Controllers are liable for their compliance with the GDPR and must only appoint processors who can provide ‘sufficient guarantees’ that the requirements of the GDPR will be met and the rights of data subjects (an individual who is the subject of personal data) protected.
Processors must only act on the documented instructions of a controller. They will however have some direct responsibilities under the GDPR and may be subject to fines or other sanctions if they don’t comply.
What does this contract look like?
To comply with the new requirements under GDPR you could either:
Our Advice to Payroll Bureaus
Our advice to payroll bureaus is that when it comes to GDPR you should aim to take an active role in educating your clients about GDPR.
Although the onus is on data controllers to ensure contracts are in place, payroll bureaus looking to get ahead of the GDPR would be well advised to approach their clients and instigate putting the appropriate contracts in place.
Template Data Protection Agreement (DPA)
To assist our customers we have created a template Data Protection Agreement which can be used as an addendum to any existing agreements.
This year St. Patrick’s Day falls on a Saturday, leaving many businesses confused as to how the benefit for St. Patrick’s Day should be given. We’ve clarified what you need to know here:
Monday 19th March 2018 may be a Bank Holiday, in that the banks are closed, but it is a normal working day and not a Public Holiday, Saturday 17th is the Public Holiday. Many businesses that operate Monday to Friday will honour Monday 19th as the holiday and close that day, but this is not a mandatory requirement. It is a requirement that full-time employees, and eligible part-time employees, are given their public holiday statutory entitlement for Saturday 17th March.
What is the Statutory Entitlement?
An employee is entitled to their employer’s choice of the following in respect of a public holiday:
Open for business on 17th March & 19th March?
Businesses that are open for business on Saturday 17th March should treat Saturday 17th March as the Public Holiday. Employees who are scheduled to work on that day should receive one of the last three options above. Employees who are not scheduled to work on 17th March may receive any of the four options. In this situation, there will be no further requirement to offer an additional benefit on Monday 19th March, this will be seen as a regular day.
With the recent bad weather, many businesses across the country have been forced to close or get by with skeleton staff. The question now on most employer’s minds is do they have to pay staff who are unable to come into work, whether because of workplace closure or inability to travel.
There is no legal obligation on employers to pay their employees if the business was forced to close due to extreme weather conditions or if employees were unable to travel to work due to bad weather. However, it is important to be aware of any custom and practice in the organisation or contractual clause, which may override this position.
The general advice to employers is to be as flexible as possible. The handling of bad weather and travel disruption can be a real opportunity for an employer to boost staff morale and show yourself as an all round fair employer. Possible considerations might include:
A company policy on absence due to inclement weather should address the situation where employees are unable to attend work, due to weather-related circumstances. Having such a policy should also mean there is much less scope for confusion and disagreement.
An Inclement Weather policy is available within the Optional Sections of the Bright Contracts Handbook.
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child/placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case, a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However, the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from the end of March 2018.
A new Bill, the Employment (Miscellaneous Provisions) Bill 2017, was published last week. According to the Employment and Social Protection Minister, Regina Doherty, the new Bill will prohibit zero hour contracts in most circumstances, as well as aiming to tackle problems caused by the increased casualisation of work and to strengthen the regulation of precarious work.
Key elements of the new Bill include:
Employers must give employees basic terms of employment within 5 days.
Within five days of a new employee starting employment, the employer must provide them with five core terms of employment. These 5 terms are:
Employers who fail to provide these basic terms, who deliberately mislead or give false information will be open to prosecution. This is a new offence.
In line with current legislation, the remaining terms of employment will still need to be provided within two months of the employee’s start date.
Zero hour contracts to be Prohibited in most circumstances.
Zero hour contracts will be prohibited in all circumstances except in cases of genuine casual work or where they are essential to allow employers to provide cover in an emergency situation or to cover short-term absences.
New minimum payment to be introduced.
Employees called into work but sent home again without work will now be entitled to a payment. Additionally, if an employee has not worked at all in a week or has worked less than 25% of their contract hours, they will also be entitled to a minimum payment. The payment shall be calculated as the pay that the employee would have receive had they worked the lesser of:
That minimum payment must be three times the National Minimum Wage or the rate set out in any applicable Employment Regulation Order.
The Bill introduces new rights for new employees whose contract of employment does not reflect the reality of the hours they habitually work. For example, the contract states 15 hours per week where in reality the employee usually works 30 hours per week. After a work period of 18 months, an employee will be able to submit a written request to change their contractual hours. The employees request must be granted within two months, only in exceptional cases will the employer be permitted to refuse the request.
Penalisation of Employees
Employees seeking to invoke their employment rights under the Bill will have strong protections against penalisation. Where an employee successfully makes a complaint to the Workplace Relations Commission, they could be entitled to up to four weeks’ remuneration.
The Bill was presented to the Dail on Thursday 7th December 2017, it is hoped that the Bill will be taken at Second Stage early in the New Year.
From 1st October 2017, the period for which Maternity Benefit is paid has been extended in cases where a baby is born prematurely. A premature birth is described as one at less than 37 weeks’ gestation. It is estimated that every year in Ireland approximately 4,500 babies are born prematurely.
Currently, under the Maternity Protection Acts 1994 and 2004, a mother is entitled to 26 weeks’ maternity leave and 16 weeks’ unpaid leave. Maternity leave normally starts two weeks before the babies expected due date or on the date of the birth of the child should it be earlier.
Under the new amendment, where a child is born prematurely the mother’s paid maternity leave will be extended by the equivalent of the duration between the actual date of birth of the premature baby and the date when the maternity leave was expected to start. For example, where a baby is born in the 30th week of gestation the mother would have an additional entitlement of approximately 7 weeks of maternity leave and benefit i.e. from the date of birth in the 30th week to the two weeks before the expected date of confinement. This additional period will be added onto the mother’s normal entitlement to 26 weeks of maternity leave and benefit, where the mother meets the ordinary qualifying criteria.
Mothers of preterm babies are advised to contact the Department of Employment Affairs and Social Protection (DEASP), email firstname.lastname@example.org, to arrange the additional payment.
Babies surviving from the earliest gestations, such as 23 weeks, can spend months in a neonatal unit in hospital, by the time a premature baby gets to go home, a mother’s maternity leave can almost be used up. This new change has been heralded as a positive step in supporting parents during a difficult time.
A Sectoral Employment Order (SEO) for the general construction industry has been signed into law by the Minister for State at the Department of Business, Enterprise and Innovation, Pat Breen.
Effective from 19th October 2017, the order provides for mandatory terms and conditions in the construction sector, including pay, pensions and sick leave. In finalising the Order, the Labour Court received submissions from the Construction Industry Federation (CIF), UNITE the Union, the Irish Congress of Trade Unions and the Trustees of the Construction Workers Pension Scheme.
Who does the Order affect?
The Order applies to employers in the construction sector, regardless of whether or not they are CIF members. The sector is defined to include both “Building Firms” and “Civil Engineering Firms”, examples will include companies involved in; construction, reconstruction, alteration, repair, painting and decorating. It is estimated that the new Order will apply to approximately 50,000 workers. Notably electricians and plumbers are not included.
The new minimum hourly pay rates are:
These new rates are approximately 10% higher than they had been under the previous Registered Employment Agreement (REA).
The following unsocial hours payments will now apply:
Pension Scheme and Sick Pay Scheme
The Order provides that employers must provide pension benefits with no less favourable terms than those in the Construction Workers Pension Scheme (CWPS). The Order also provides for a mandatory sick pay scheme, in recognition of the health and safety risks posed to industry workers.
The Order includes a new dispute resolution procedure. No strike or lock-out is allowed unless and until all stated dispute resolution procedures have been exhausted.
Where to from here?
The Order is a significant development for those in the general construction industry. Employers will need to review their payment practices to ensure that they comply with the new requirements.
Data protection and how personal data is managed is changing forever. On 25 May 2018 the new General Data Protection Regulation (GDPR) will come into force. The GDPR is a European privacy regulation replacing all existing data protection regulations.
The current data protection legislation in Ireland dates back to 1998 and 2003, predating current levels of internet usage and cloud technology, making it unsuitable for today’s digital economy.
The GDPR will apply to any personal data of EU cititzens, regardless of whether it is stored within or outside the EU. Most, if not all companies, process a level of personal data, whether it is customer details or employee details, therefore businesses need to be aware and plan for the new legislation.
What is Personal Data
The GDPR substantially expands the definition of personal data. Under GDPR, personal data is any information related to a person, for example a name, a photo, an email address, bank details, their personnel file, or a computer IP address.
Some of the key changes included as part of the GDPR include:
Consent must be clear, distinguishable from other matters and provided in an easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Breach Notifications: where a breach occurs, the Data Protection Commission and affected data subjects must be notified within 72 hours of the breach coming to light.
Data Subjects will have additional rights, including:
Ignoring the new legislation is ill advised as there are tough new fines for non-compliance. Companies or organisations found to be in breach of the legislation will face fines of up to 4% of annual global revenue or 20 million Euros, whichever is greater. The Data Protection Commissioner is the authority responsible for enforcing data protection obligations in Ireland. In preparation for the legislation, the Commission is doubling it’s workforce, leaving no doubt that they will be taking their new responsibilities extremely seriously.
If you have yet to start planning for GDPR click here for guidance on how to prepare.
Revenue officials regularly carry out prearranged and/or unannounced visits to business premises across the country inspecting various aspects of taxation compliance. Perhaps a lesser known fact, however, is that on request during any such visit, employers have a statutory obligation to produce a Register of Employees.
What is a Register of Employees
A Register of Employees must contain the following information:
The register will not only contain information for full-time staff but also must include temporary, part-time or casual employees.
The obligation to maintain a Register of Employees is separate to an employer's obligation to register with Revenue for PAYE purposes.
Storing the Register
The Register of Employees must be kept either at the normal place of employment of each employee or at the main place of business of the employer, for example, a business’s HQ. The register may be in paper or electronic format.
Employers who outsource their payroll and normally retain very little information on site must be aware that the onus remains on them to keep and maintain the Register or Employees at the normal place of business.
The Penalty for Non-Compliance
Failure by a company to keep and maintain a Register of Employees carries a penalty of €4,000.