We all know that employment law is a minefield. Sometimes it may feel like there is legislation for everything and often there are lots of ‘buzz-words’ specific to employment law being bounced around. You wouldn’t be on your own if you thought that employment law is like another language! In an effort to help employers wade through these buzz-words and parts of legislation, we at Peninsula have created our very own Employment Law Dictionary! It’s simple, concise and easy to understand. Each month we represent a letter of the alphabet and associate a few words in employment law with that letter.
Self-Employment- It is important for an employer to be clear about whether an employee is an employee or actually self-employed. It is essential that an employer does not miscategorise a worker’s genuine status, either intentionally or unintentionally because there are significant tax and employment legislation issues in particular surrounding a worker’s status. If a worker is deemed to be an employee then they will be subject to different tax rates and they will enjoy all the protection that employment legislation affords such as the right to annual leave, public holidays, maternity leave, parental leave etc. and most importantly they retain the ability to take an unfair dismissal claim.
The key to whether an employee is self-employed or not lies in the relationship between employee and employer and what happens in practice in that relationship.
Sexual Harassment- Sexual harassment is largely governed by the Employment Equality Act, 1998, which outlines that sexual harassment can be any act of physical intimacy, any express request for sexual favours or any other act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material, where such behaviour is unwelcome and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating. Employers should be aware that they may be vicariously liable for such harassment if perpetrated by a fellow employee of the victim, the employer themselves or a client/business contact of the employer in circumstances where the employer ought reasonably to have taken steps to prevent such harassment. Employers should also adopt a written statement/policy on harassment in the workplace in line with relevant codes of practice and take steps to ensure that employees are familiar with the terms of that policy.
Suspension- In suspected serious cases of misconduct, an employer may suspend an employee pending investigation into the circumstances surrounding the situation. Where the misconduct falls short of potential gross misconduct then the employee should only be suspended if it is absolutely necessary and the period of suspension should be as brief as possible. However, if the employee’s actions are potentially gross misconduct they should be suspended on pay as soon as possible as allowing the employee to continue to work would undermine the “gross” nature of their actions. If an employee is suspended in such circumstances, their contract of employment must continue together with all rights under the contract including payment of salary/wages for time spent on suspension.
Suspension without pay is a potential disciplinary outcome that employers may pursue. However, this is not an advisable outcome as disciplinary outcomes are intended to be “corrective” and “not punitive”. To suspend without pay is simply a punishment and does not demonstrate any effort from the employer to correct the employee’s behaviour and show them where they went wrong.
