“I took on a farm worker in the last couple of months to help me out during the busy calving and breeding season. Things are working out well and I plan on keeping him on. What do I need to do legally to cover myself in taking him on as an employee?”

Employment law was overhauled recently with the introduction of the Workplace Relations Act 2015. It established the Workplace Relations Commission (WRC) on 1 October 2015 which is now responsible for ensuring compliance and enforcement of employment rights legislation which was formerly operated by NERA.

For those readers who have an existing employee but do not have a written employment contract, I would urge you to put one in place straight away. The consequences of not complying with employment legislation can be disastrous should the employee not work out as planned and then threaten to bring a claim against you or if the employee is involved in a workplace accident on the farm or the WRC carries out an inspection.

If you have an existing employee without an employment contract, when you do go to put in place a written contract, you should ensure that it reflects the current terms of employment. While employment legislation set a minimum wage, minimum holiday entitlements etc, if you have afforded him or her greater rights, it is arguable that you are contractually bound to maintain those terms and conditions. If you as the employer wish to change a term or condition of employment, you must agree this change with your employee, which is a requirement under contract law.

Checking references

If you are looking at taking on a worker, the first thing you should do is ask for at least two references, ideally from previous farmer employers. I have come across numerous cases in practice where when things went wrong with a farm worker, it emerges that they have a poor track record in previous employments.

Where the worker does give the names of past employers, ensure that you do phone them up as it has happened that a letter allegedly provided by a previous employer giving the worker a glowing report had not been written by the farmer employer at all.

Once you are satisfied that the worker has a reasonable track record, you should look at including a probationary period in the contract of employment to give you more freedom in letting the employee go should things not work out as planned. The legislation provides that the Unfair Dismissals Acts will not apply (except in specific limited circumstances) to the dismissal of an employee when he/she is on probation or undergoing training provided that the contract of employment is in writing, the duration of probation or training is one year or less and it is specified in the contract. This highlights further the importance of having a written contract.

Employment contract

While the full contract of employment does not have to be in writing, you must give your employee certain terms and conditions of employment in writing within two months of starting employment.

It should include details such as the date of commencement of employment, job title or nature of work, whether there is a probationary period and for how long, terms and conditions relating to hours of work, pay, notice periods etc. While I would advise farmers to get a solicitor to draft a contract of employment as the risk of getting the law wrong could cost you much more in the long run, a sample written statement of terms of employment is available for free at https://www.workplacerelations.ie/en/Publications_Forms/Sample_Terms_of_Employment.pdf

Payslip

As an employer, you are legally obliged to provide a payslip which should include a breakdown of gross pay, hours worked, hourly rate of pay, holiday pay, sick pay etc. In addition, it should include deductions from gross salary such as tax, PRSI, USC, board and lodgings etc.

Health and safety

The Safety, Health and Welfare at Work Act, 2005, places a legal duty on employers to prepare and work to a safety statement. However, farmers with three or fewer employees will be able to fulfil their statutory duty by completing a Risk Assessment Document which should be brought to the attention of all employees. It is recommended to get employees to sign the document as soon as they begin work confirming that they have been made aware of the safety statement or risk assessment document. While this is important in encouraging safe farming practices, it is especially important in defending a claim in the unfortunate event that the employee is involved in an accident. A copy of the HSA agriculture code of practice incorporating the risk assessment document is available on the Department of Agriculture or HSA website.

Disciplinary procedures

The WRC has a code of practice on grievance and disciplinary procedures which states that employers should have written grievance and disciplinary procedures. This can be incorporated into the written employment contract. These procedures should set out the stages and process employers should follow in relation to alleged shortcomings of an employee. Generally, the procedures allow for informal warnings leading to written warnings and ultimately to dismissal. Under the Unfair Dismissals Act you are required to give employees written notice of the procedures to be followed before dismissal. This must be done within 28 days of entering the contract of employment. If you do dismiss an employee, you must be able to show that there were fair grounds for dismissal and that fair procedures were followed.

Employer’s Checklist in the event of an inspection by the WRC