HR in 90 Seconds - August 2018

In this month’s ‘HR in 90 seconds…’ we are mostly looking at contracts of employment including custom and practice and its effect on contracts, and key considerations to note when considering using fixed-term contracts.
 
We also take a look at a few other interesting articles, including the notion of ‘manager versus leader’ and we have summarised the key findings from the 2017 Labour Court Annual Report.
 
We have a number of excellent resources on our Employment Law Hub but we know you are short for time so we have reviewed this month’s top articles and brought together the key points to help you stay up to speed. If you have more time you can follow the relevant links for more information on each issue.
 
This month’s takeaway points in numbers include:

• 5 criteria, used by the Courts, for clarifying what constitutes custom and practice;
• A 9-point guide to fixed-term contracts;
• 4 key findings from the Labour Court Annual Report 2017.

Contractual Terms Implied by Reason of Custom and Practice

Laura Graham from Reddy Charlton Solicitors continues the ‘Reddy Made Contracts’ series looking at how custom and practice terms are often implied into a contract of employment. Laura has summarised the criteria that the Courts have generally considered to determine whether a benefit has reached contractual status by reason of custom and practice:

1. How many occasions, and over how long a period, has the benefit in question been paid? The longer the period and the higher the frequency the more likely it is that employees will be entitled to this benefit.
2. Were the benefits always the same? If the benefits paid are always the same, it will be indicative of a contractual obligation.
3. The extent to which the enhanced benefits are published generally. If the benefit is published to the workforce this will be indicative that the benefit is paid as a matter of obligation.
4. How are the terms are described? If the benefit is explicitly and consistently described as “discretionary”, employees will find it more difficult to sustain an argument that they understood it to be a contractual benefit, no matter how often it is paid.  
   In addition, employers should engage in a decision-making process before confirming the benefit so that it can clearly demonstrate that the benefit is not paid automatically and as a matter of course.
5. What is said in the express contract? As a matter of contract, no term should be implied, whether by custom and practice or otherwise, which is inconsistent with the express terms of the contract, unless there is a clear intention to vary the terms..

Laura concludes that the burden of establishing that a practice has become contractual is on the employee and that employers need to look beyond the documents governing the employment relationship and consider if an implied term may exist.  

A Guide to Fixed-Term Contracts

Continuing with contracts, Ciarán Ahern, Associate with A&L Goodbody's Employment Group, has provided answers to some of your questions on fixed-term workers.

1. When is the use of a fixed-term contract appropriate?
2. What considerations need to be made when renewing a fixed-term contract?
3. When can a fixed-term contract be deemed to be a contract of indefinite duration?
4. What are the objective justifications for not offering a contract of indefinite duration?
5. Can an employee bring an unfair dismissal claim on the non-renewal of a fixed-term contract? 
6. What protections are afforded to fixed-term workers?
7. Is there a restriction on the length of a fixed-term contract?
8. Can you dismiss an employee prior to the expiry of a fixed term contract?
9. Are employees entitled to redundancy if/when they are dismissed at the end of the contract?

Other items of interest:

Managers versus Leaders: is there a difference?

The terms ‘manager’ and ‘leader’ are sometimes used interchangeably but is there a difference between the two and can a manager also be a leader? Olga Pollock, a writer for Legal-Island in Northern Ireland, looks at leadership in terms of transformational leadership which inspires others to share vision and put people’s needs first. Olga highlights the difference between the two roles, for example:

• Leaders tend to be visionary and go beyond goal setting. Managers focus on goal setting and measure achievement towards these.
• Leaders innovate and disrupt the status quo.
• Leaders are authentic and transparent. Managers may have learned and copied their management style.

Olga discusses other key differences between a leader and a manager and how organisations can encourage their managers to be effective leaders, including the use of leadership training. Olga quotes Steve Jobs in an inspirational quote, ''Management is about persuading people to do things they do not want to do, while leadership is about inspiring people to do the things they never thought they could." 

Read Olga’s full article

Labour Court publishes Annual Report for 2017

Also the Labour Court have published their 2017 annual report and we provided a summary of the key findings from the 73-page document, these include:  
 
• Received 1093 referrals 
• Held 708 hearings 
• Issued 530 Recommendations / Determinations / Decisions / Orders 
• Investigated 152 cases that were settled prior to or at a hearing. In addition, 202 appeals were withdrawn by parties during 2017 prior to hearing.  A further 141 cases were on hold at year end and 46 cases during the year were found upon referral to be outside the statutory time-limits for receipt of cases.

Why not register for our next free webinar:

Lyons to the Max: How has the WRC Interpreted Lyons v Longford Westmeath ETB?
11:00am - 11:30am on Friday 21st September 2018
 
In this webinar, Bláthnaid Evans, Head of Employment at Leman Solicitors, describes her recent experiences with clients following the Lyons decision and how employers and WRC adjudicators have interpreted and implemented the decision.
 
Questions addressed in this webinar include:

• May employees lawfully cross-examine colleagues in internal investigations?
• When do employees have the right to legal representation in internal investigations?
• What if the investigation is limited to a fact-gathering exercise?
• Is the situation different when the investigation creates binding findings and the allegations could result in dismissal or damage to reputation?

If you would like to register please follow the link:
https://attendee.gotowebinar.com/register/3105510512280531459
 
If you have seen any HR related articles you’d like to share with Legal-Island readers, drop a line to lynsey@legal-island.com