1. SOURCES OF EMPLOYMENT LAW
Employment law is derived from six sources:
• the Constitution of Ireland 1937;
• legislation;
• common law;
• works rules;
• collective agreements; and
• international and EU law. Whenever there is a conflict or inconsistency between the provisions of the Constitution and Irish law the Constitution prevails. Similarly EU law overrides Irish legislation in the event of inconsistency. The most significant form of collective bargaining in Ireland’s industrial relations is the national tripartite social agreement between employers’ organisations, trade unions and the government. The primary Acts of the Oireachtas (Parliament) impacting on employment law are:
• Industrial Relations Acts, 1946-2004;
• Redundancy Payments Acts, 1967-2003;
• Employment Agency Act, 1971;
• Minimum Notice and Terms of Employment Acts, 1973-2005;
• Unfair Dismissals Acts, 1977-2005;
• Protection of Employment (Employers Insolvency) Act, 1984-2004;
• Data Protection Acts, 1988 and 2003;
• Safety, Health and Welfare at Work Act, 2005;
• Payment of Wages Act, 1991;
• Maternity Protection Acts, 1994 and 2004;
• Terms of Employment (Information) Acts, 1994-2001;
• Adoptive Leave Act, 1995 and 2005;
• Transnational Information and Consultation of Employees Act, 1996;
• Employment Equality Acts, 1998 and 2004;
• Protection of Young Persons (Employment) Act, 1996;
• Organisation of Working Time Act, 1997;
• Parental Leave Acts, 1998 and 2006;
• National Minimum Wage Act, 2000;
• Protection of Employees (Part-Time Work) Act, 2001;
• Protection of Employees (Fixed-Term Work) Act, 2003;
• Carer’s Leave Act, 2001;
• European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003;
• Employment Permits Act, 2003 and 2006;
• European Convention on Human Rights Act, 2003;
• Pensions Acts, 1990-2005;
• Civil Service Regulation (Amendment) Act, 2005; and
• Employees (Provision of Information and Consultation) Act 2006;
2. PRINCIPAL INSTITUTIONS
Institutions dealing with disputes involving infringement of individual employment law are the Rights Commissioner; the Employment Appeals Tribunal (EAT); the Labour Court; the Director of the Equality Tribunal; and the national courts. The Rights Commissioner also has a role where the dispute does not involve infringement of strict legal rights, as do the Conciliation Service of the Labour Relations Commission (LRC), the Labour Court and the Civil Service Conciliation and Arbitration Schemes.
The state’s role in industrial relations in Ireland has been largely confined to facilitating collective bargaining by establishing a number of statutory institutions to assist in the resolution of disputes between employers and employees. In the main the investigation and resolution of industrial disputes is carried out by the LRC and by the Labour Court.
Rights Commissioner investigations and hearings are conducted in private. A Rights Commissioner has jurisdiction in disputes concerning matters such as adoptive and parental leave, maternity protection, working time, unfair dismissal, payment of wages and minimum wages. Following investigation, a Rights Commissioner issues a recommendation to the parties which, depending on the legislation, can be appealed.
The EAT consists of a legally qualified chairperson and two lay members, with employer and trade union experience respectively. In general, EAT hearings are public. The EAT has appellate or original jurisdiction under many statutes, dealing with issues as diverse as redundancy, unfair dismissal, minimum notice, transfer of undertakings and so on.
The Equality Authority has a general remit to combat discrimination and to promote equality under equality legislation. It provides information to the public and can, at its discretion, provide legal assistance to people who wish to bring claims to the Equality Tribunal.
The Equality Tribunal is the specialist adjudicative institution for disputes under employment equality law and the Director of the Equality Tribunal may delegate legislative functions to equality officers and equality mediation officers.
The Equality Tribunal mediates and/or investigates claims brought under employment equality legislation. Parties are initially offered the option of mediation. Claims are investigated by an equality officer. The process is quasi-judicial and either party has a right to appeal a decision of the equality officer, to the Labour Court.
The LRC comprises equal numbers of employer and trade union representatives. It has responsibility for the promotion of good industrial relations through the provision of an industrial relations conciliation service, an industrial relations advisory development and research service and a rights commissioner service. Industrial disputes must first be referred to the LRC except where there is provision for referring the dispute directly to the Labour Court or where the LRC waives its function of conciliation in a dispute. If both parties are agreeable, the LRC assigns an industrial relations officer to assist in resolving the dispute.
The Labour Court consists of an independent chairperson, one employer and one trade union representative. The court does not apply formal rules of evidence, but has regard to fair procedures and to natural and constitutional justice. The Labour Court investigates collective trade disputes and in certain circumstances non-collective trade disputes, and also determines working time complaints, employment equality complaints and, in some instances, appeals from a Rights Commissioner recommendation. Decisions of the Labour Court are generally non-binding.
The Labour Inspectorate is a unit within the Department of Enterprise, Trade and Employment with an enforcement role under certain employment legislation. Inspectors have wide powers of search and entry. Enforcement is achieved either by way of voluntary compliance or through legal proceedings in the courts.
3. ROLE OF THE NATIONAL COURTS
The Irish courts system originates from the Constitution and comprises a court of first instance with full jurisdiction in criminal and civil matters (High Court), a court of appeal (Supreme Court) and courts with local limited jurisdiction in civil and criminal matters (circuit and district courts) organised on a regional basis.
The vast majority of employment law matters are heard by the civil courts.
4. EMPLOYMENT STATUS AND CATEGORIES OF WORKER
An individual may be employed under a contract of service or be self-employed under a contract for services. The courts and adjudicating authorities increasingly look at the economic reality of the situation and not solely at any written agreement between the parties.
The test for self-employment most often used is: is the person in business on their own account?
A code of practice highlights such indicators as:
An individual determined to be an employee will, most importantly:
In contrast a self-employed person will not have the benefit of most statutory employment rights and will be obliged to self-assess to the Revenue Commissioners for taxation purposes.
There are five principal categories of ‘worker’ in most organisations (and within these a potential myriad of atypical working arrangements, including flexi-hours, zero hours, seasonal or annualised work):
Permanent
These employees are employed under a contract of employment for an indefinite period, generally terminable on notice.
Part-time
These employees are employed under a contract of employment on a part-time, reduced hour or shift-work basis and are protected against less favourable treatment by statute.
Fixed-term/fixed-purpose
These employees are employed under a contract of employment for a fixed term or fixed purpose and are protected against less favourable treatment by statute.
Agency workers
These workers are provided by an employment agency either for a set charge and an agreed period of time or for an introduction fee in which case the individual becomes employed by the client company.
Civil servants
These are employed in a civil capacity and their remuneration is paid wholly and directly out of public monies.
A company director is an officer under the instrument constituting the company (the articles of association) and may be either an executive director who is also an employee of the company or a non-executive director who has no employment relationship.
5. CONTRACT
A binding employment contract requires an offer of employment, a subsequent acceptance, an intention to enter into legal relations and valid consideration.
There are no formal requirements. A contract may be oral or in writing and may comprise more than one document.
Terms of employment may be:
law, or from custom and practice.
In general parties may not contract out of terms implied by statute.
6. TERMS AND CONDITIONS
Statute requires employers to give their employees (within two months of commencement) a statement in writing (the statement does not constitute a contract unless so described) detailing various matters for the employee:
The statement must detail the period of notice which the employee is required to give and is entitled to receive and refer to any collective agreements which directly affect the terms and conditions of employment.
An employer must also give an employee notice in writing not later than 28 days after it enters into a contract of employment setting out the procedure which the employer must observe before and for the purpose of dismissing the employee.
In addition to providing details regarding the terms set out at section 6.1 above, particularly regarding pay and termination, contracts of employment will typically contain terms regarding:
Working time
The maximum average hours permitted for a working week (in each period of seven days) is 48 hours, calculated over varying reference periods depending on the work.
Employees who are determined to be in charge of their own day are exempt.
Annual leave
Employees are entitled to paid annual leave equal to:
Rest breaks
Employees are entitled to a rest break of 15 minutes after working four hours and 30 minutes, and a rest break of 30 minutes after working six hours. Employees are entitled to an 11 hour rest period in every 24 hour period. Employees are entitled to a rest period of at least 24 consecutive hours, in each period of seven days, or two rest periods of 24 hours during the following seven-day period in lieu.
The current national minimum wage is €7.65 per hour for an adult worker who has any work experience in any two years since reaching the age of 18.
Employees who are in their first year of employment since reaching the age of 18 are entitled to €6.12 per hour. For such employees in their second year the rate is €6.89 per hour. Employees under 18 years are entitled to €5.36 per hour. The current national minimum wage is under review and a new rate is due to come into effect in January 2007. The Labour Court has recommended an increase of one euro per hour, to be implemented in two phases in the New Year.
7. EMPLOYEE REPRESENTATION
The Constitution provides for the right of citizens to form associations and unions. Laws may be enacted for the regulation and control in the public interest of the exercise of this right.
While an employee has a constitutional right of association and dissociation with a particular union, an employer is not bound to recognise or negotiate with a trade union. If an employer chooses to recognise a trade union, the trade union must be ‘authorised’ (hold a negotiating licence) as defined by law.
While there is no general obligation to consult with trade unions or staff associations, legislation provides duties of information and consultation with employee representatives.
European works councils
European works councils (relatively uncommon in Ireland) must be established for informing and consulting employees by a ‘Community-scale undertaking’, ie an undertaking with 1,000 employees within EU member states and at least 150 employees in each of at least two member states and/or a ‘Community-scale group of undertakings’ as defined.
Employees’ representatives in the case of a European works council are employees elected or appointed to the Council.
Employees (Provision of Information and Consultation) Act 2006
This Act, which implements EU Directive 2002/14/EC, gives employees employed in an ‘undertaking’ employing more than 50 employees a right to information and consultation. It should be noted that the Act has introduced this obligation on a phased basis with different dates depending on the size of the employer, however all undertakings with more than 50 employees will be covered by 25 March 2008. An information and consultation arrangement is not an automatic right but must be triggered by written request of 10 per cent of employees (subject to a minimum of 15) or at the employer’s initiative. An employer may refuse to share confidential information that would seriously harm the functioning of the undertaking or be prejudicial to it. Employees may exercise their right to information and consultation directly or indirectly through their representative elected or appointed under the Act. The Act contains a system of redress in the event that its provisions are breached.
Collective redundancies
When an employer proposes to effect dismissals within the same 30-day period, and the number of dismissals is at least five in an organisation employing between 20 and 50 people, at least ten in an organisation employing between 50 but less than 100, and at least ten per cent of the number of employees in an organisation employing at least 100 but less than 300, and at least 30 in an organisation where there are 300 or more employees, the employer is required to enter into a process of consultation and information with employees’ representatives about the proposed dismissals.
‘Employees’ representatives’ means a trade union or staff association or a person or persons chosen by the employees likely to be affected by the proposed redundancies to represent them.
Transfer of undertakings
Under the Transfer of Undertakings Regulations, ‘employee representatives’ means either a trade union or staff association or in the absence of same a person or persons chosen by the employees from among their number to represent them in negotiations with the employer.
In the absence of such representatives the transferor or transferee, as appropriate, must put in place a procedure whereby employees can choose a person from among their number to represent them. In default employees must be informed in writing.
The status and function of employee representatives or representation must be preserved where the undertaking preserves its autonomy following transfer.
Health and safety
An employer has a statutory duty to consult with its employees and to take account of any representations they may make, with regard to safety, health and welfare of the workplace. Employees may decide to elect one of their number to be a safety representative to represent the workforce. Safety representatives have a right to receive information from the employer and employers must notify the safety representative when an inspector from the Health and Safety Authority is on site. Employees, whether acting as safety representatives or not, are protected against any penalisation by their employer, which will include any adverse action taken by the employer by reason of an employee exercising his statutory rights or making any representations or complaints relating to health and safety.
8. INFORMATION AND CONSULTATION
The parties are obliged to inform the employees’ representatives (or, if there are no representatives, the employees themselves) in writing of:
If ‘measures’ are envisaged in relation to the employees, the transferor must ‘consult’ with representatives of the employees (or, if there are no representatives, with the employees themselves), where practicable, not later than 30 days before the transfer is carried out and in any event in good time with a view to seeking agreement.
The transferor has an obligation to notify the transferee of all the rights and obligations existing in any employment contract on the date of transfer, so far as those rights or obligations are, or ought to have been, known to the transferee at the time of transfer.
An employer proposing to create collective redundancies must initiate consultations with the employees’ representatives with a view to reaching an agreement not later than 30 days before the first dismissal takes effect. Consultations must be conducted in good faith and include:
Consultations must be initiated at the earliest opportunity and, in any event, at least 30 days before the first dismissal takes effect.
For the purpose of the consultation process, the employer concerned must supply the employees’ representatives with all relevant information relating to the proposed redundancies.
An employer who fails to initiate consultations or to supply the prescribed information is guilty of an offence and may be liable on summary conviction to a fine.
Employers must provide appropriate information to employees on any hazards or risks in the workplace and the protective and preventative measures to be taken, together with the names of those responsible for emergency duties or appointed safety representative. There is a statutory requirement to have a safety statement which must be regularly updated and reviewed and which must be communicated in a form and manner likely to be understood by employees and third parties. Employers must consult with employees, or their safety representative, for the purpose of promoting and developing measures to protect health and safety. A failure to consider representations may constitute an offence and it is necessary to ensure that the consideration is recorded in some way.
9. EQUAL OPPORTUNITIES
An employer may not discriminate against an employee or prospective employee in relation to:
Discrimination may be alleged on imputed grounds or on the basis of association with third parties. The legislation provides for equal pay for like work between men and women, and there are significant provisions on measures to give disabled employees access to employment or training.
9.2 Protective leave
Maternity leave
Employees who are pregnant and intend to work after the baby is born (regardless of length of service) are entitled to maternity leave of 22 weeks (and 26 weeks after 1 March 2007) and to additional unpaid maternity leave of 12 weeks (16 weeks after 1 March 2007) immediately thereafter.
Employers are not legally required to pay employees on maternity leave. During the 22-week maternity leave period, employees may be entitled to receive maternity benefit from the state.
Pregnant employees are entitled to paid time off work during normal working time for prenatal and post-natal medical checks. Expectant fathers have a right to paid time off work to attend the last two antenatal classes immediately before the birth.
Breastfeeding employees are entitled either to adjusted working hours or, where facilities exist, to breastfeeding breaks without loss of pay.
The employee remains in employment during maternity leave and all statutory and contractual rights other than the right to receive remuneration and superannuation benefits are either preserved or suspended during that time.
There is a general right to return to the same job for employees on maternity leave. If this is not possible, the employer must provide suitable alternative work.
An employee who is not permitted to return to work will be deemed to have been unfairly dismissed.
Parental leave
An employee who is the natural or adoptive parent of a child is entitled to unpaid leave from employment for up to 14 working weeks to take care of the child. Leave may be taken in respect of a child up to eight years of age, where the child is adopted the upper age limit can be extended. In the case of a child with a disability, leave may be taken up to 16 years of age. In addition an extension may also be allowed where illness or other incapacity prevented the employee taking the leave within the normal period. An employee will be entitled to parental leave in respect of each child of which he or she is a natural or adoptive parent. An employer is not obliged to pay the parent during parental leave.
The leave may be taken in one block period of 14 weeks, in two blocks (of not less than six weeks each) or by agreement between the employer and employee.
To avail of parental leave, an employee must have at least one year’s continuous employment with the employer.
The rights of an employee during parental leave and his or her right to return to work are similar to those which apply to maternity leave.
Force majeure leave
Force majeure leave is for family crises where, owing to the injury or illness of specific categories of family members, including a domestic partner, the presence of an employee is required at the place of the family member. The maximum force majeure leave is three days in one year or five days in any three-year period. Employees are entitled to be paid while they are on force majeure leave.
Adoptive leave
Adopting mothers or sole male adopters are entitled to 20 weeks’ (24 weeks’ from 1 March 2007) adoptive leave from the date of placement and an additional 12 weeks’ (16 weeks’ from 1 March 2007) thereafter. During the initial 16-week period of leave, the employee may be entitled to payments from the state. Employees have no right to pay while on adoptive leave.
Adopting parents are entitled to paid time off work to attend preparation classes and pre-adoption meetings with social workers/HSE officials required during the pre-adoption process. The rights of an employee during adoptive leave and his or her right to return to work following adoptive leave are similar to those for maternity leave.
Carer’s leave
An employee may take temporary unpaid leave from his or her employment personally to
provide full-time care and attention for a person certified in need of such care.
The maximum leave is 65 weeks for any one care recipient. The minimum is 13 weeks.
An employee must have been in continuous employment for 12 months before the leave.
All statutory and contractual rights other than the right to receive remuneration, superannuation benefits and holiday are protected during the leave.
The right to return to work is similar to the right following maternity leave.
10. DISCIPLINE AND TERMINATION
10.1 The Irish Constitution and dismissal
A common law or statutory right of dismissal, however exercised, will not be effective if it constitutes an abuse or infringement of the Constitution. The three constitutional rights most likely to arise in this context are:
Rights afforded by the Irish Constitution apply to all persons equally whether employees, self-employed or office holders.
10.2 Termination at common law
Operation of law
A contract may terminate by operation of law in the event of death, dissolution of a partnership, the making of a winding up order or frustration.
The appointment of a receiver by the court transfers the business to it and is therefore governed by the Transfer of Undertakings Regulations.
Termination by agreement
A contract may terminate by mutual consent in accordance with its terms as, for example, in the case of a fixed-term contract.
Termination on notice
A contract may terminate on the giving of notice as set out in the contract. If no notice is stipulated the contract is subject to an implied term allowing it to be terminated on reasonable notice. Statute has provided for minimum notice.
Dismissal without notice
Termination of a contract of employment without notice, summary dismissal, ordinarily is a breach of contract unless there are grounds sufficient to justify termination without notice.
10.3 Remedies for wrongful dismissal
The main remedy for wrongful dismissal of an employee employed under a contact of employment is damages. A claim must be brought within six years.
The courts may injunct dismissals where there is an arguable case that an employee has been or is about to be wrongfully dismissed and damages would not be an adequate remedy. This remedy is now both frequently sought and strategically significant in cases of dismissal.
Generally the interlocutory injunction is granted on terms that the employer continues to pay the employee until the trial of the action and the employee undertakes to be available for work if requested. The court considers whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought.
10.4 Unfair Dismissals Acts
The Unfair Dismissals Acts co-exist alongside the common law right to dismiss on notice. Statute deems a dismissal to be unfair unless there are substantial grounds to justify it.
Dismissal is deemed not unfair where it is for:
10.5 Eligibility
An employee must have continuous service of not less than one year except where dismissal is related to pregnancy or maternity leave, or is connected with trade union membership or activities.
Categories excluded from seeking protection include employees who have reached normal retirement age.
There are special provisions regarding employees on fixed-term contracts or contracts for a specified purpose.
Employees supplied by employment agencies are deemed to be employees of the user of their labour for unfair dismissals law.
10.6 Meaning of dismissal
‘Dismissal’ arises:
of the term/cesser of the purpose. The second category constitutes ‘constructive dismissal’. The legislation does not apply to fixed-term/specified purpose contracts where the parties
have a written waiver of liability in accordance with the statute.
10.7 Statutory remedies
An unfairly dismissed employee may be awarded redress consisting either of reinstatement, re-engagement or compensation. Compensation cannot exceed 104 weeks’ remuneration where the employee’s financial loss is attributable to the dismissal. If it not, there is jurisdiction to award compensation not in excess of four weeks’ remuneration.
10.8 Disciplinary procedures
Disciplinary procedures traditionally provide for a series of steps, which include verbal
warnings, written warning, suspension with or without pay and dismissal.
The right to representation is provided as appropriate.
In relation to suspected gross misconduct, disciplinary procedures will typically prescribe precautionary suspension of the employee on full pay during investigation.
Special considerations apply to the drafting of disciplinary procedures for non-unionised employees. Procedures which apply in the case of intra-employee complaints (eg for bullying/ harassment) are also distinguishable.
10.9 Redundancy dismissals
Statute provides five alternative definitions of redundancy. Strict adherence is required if an employee is to be dismissed by reason of redundancy. Apart from redundancy where there is cessation of the business, the most commonly invoked criterion is where the employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his or her dismissal) to be done by the other employees or otherwise.
An employee with in excess of 104 weeks’ service who is dismissed for redundancy (as defined) or kept on short term or laid off is entitled to a statutory redundancy payment computed as the aggregate of:
‘Weekly remuneration’ is subject to a statutory ceiling, currently €600.00. As statutory redundancy payments tend to be low, employees often receive additional ex gratia payments, usually based on length of service.
In addition to the statutory payment an employee is entitled to notice in accordance with the contract of employment; and an employee who is being dismissed by reason of redundancy is entitled to two weeks’ notice in writing of the proposed dismissal.
Provided it has given the employee two weeks’ notice of redundancy an employer is entitled to receive a rebate of 60 per cent of the statutory lump sum paid.
Collective redundancies are dealt with in sections 7 and 8 above.
Once a genuine situation of redundancy exists, if the place of work is not closing down
completely, an employer needs to ensure fairness of the selection of the employees to be made redundant to avoid liability for unfair dismissal. Redundancy dismissals must satisfy the test of reasonableness.
11. COLLECTIVE DISMISSALS
Collective redundancies are dealt with in sections 7 and 8 above.
12. FORTHCOMING LEGISLATION
Combat Poverty Agency Act 1986, the Freedom of Information Act 1997, the Taxes Consolidation Act 1997 and the Carer’s Leave Act 2001.
13. USEFUL REFERENCES
General bodies
Department of Enterprise, Trade and Employment:
www.entemp.ie
Employment Appeals Tribunal:
www.eatribunal.ie
Equality Authority:
www.equality.ie
Government of Ireland:
www.gov.ie
Health and Safety Authority:
www.hsa.ie
Labour Court:
www.LabourCourt.ie
Labour Relations Commission:
www.lrc.ie
Equality Tribunal:
www.equality.ie
Bibliography
M Bolger and C Kimber Sex Discrimination Law (Dublin: Round Hall, 2000)
G Byrne Transfer of Undertakings (Dublin: Blackhall, 1999)
A Kerr and G Whyte Irish Trade Union Law (Abingdon: Professional Books, 1984)
M Redmond Dismissal Law In Ireland (Butterworths, 1999) and 3rd edition 2007 (Tottel).
