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Employment Law

EMPLOYMENT LAW

 

Domestic and European legislation in relation to Employment law has grown dramatically in recent years, some of which is outlined below. Employees have considerably more rights and employers have far more rules and procedures to comply with.

We deal with all aspects of employment law and represent clients in the Courts and Employment Tribunals. In addition we draft and advise on various contracts of employment.

 

Terms of Employment (Information) Acts, 1994-2012

An employer is required to provide a written statement to employees setting out certain basic terms of employment.

An employee may submit a complaint to a Rights Commissioner if the employer has not provided full and accurate Terms of Employment or has not notified the employee of any change to the terms.

Minimum Notice and Terms of Employment Acts 1973 to 2005

An employee is entitled to minimum notice or pay in lieu where they have been working for an employee for less than 13 weeks or are dismissed for gross misconduct.

If there is a breach of the above legislation an application should be made to the Employment Appeals Tribunal.

Organisation of Working Time Act 1997

If an employer is in breach of the statutory working hours for employees a claim may be brought through the Workplace Relations Commissioner within 6 months of the date of any contravention (12 months where reasonable cause is shown for failure to bring claim within 6 months)

National Minimum Wage Act 2000

Employers can pay sub-minimum rates of pay to certain categories of employees i.e.;

  • If under 18 years you are entitled to 70% of the National Minimum wage
  • Those who either enter employment for the first time or continue in their employment after reaching 18 years of age are entitled to 80% of the hourly wage in year 1 and 90% in year 2
  • Trainees undergoing certified study or training are entitled to 75% of the wage for the first one-third of the training/study period, 80% for the second one-third period and 90% for the final one-third period (note: each one third must be at least one month and no more than one year).

Prior to an employee referring a dispute for hearing, they must seek a written statement of pay from the employer and this must be provided within four weeks of request.

PAYMENT OF WAGES ACT 1991

An employee may complain to a Rights Commissioner where it appears that the employer has made an unlawful deduction, or required an unlawful payment, from wages. Such complaints must be made within six months of the date of the deduction or unlawful payment giving rise to the complaint. This may be extended by a further six months where the Rights Commissioner is of the view that there are exceptional circumstances.

Where the Rights Commissioner decides that the complaint is well-founded, he can order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances but, in any event, an amount not exceeding the net amount of the wages .

Maternity Protection Acts 1994 and 2004
The Safety, Health & Welfare at Work (General Application) Regulations 2007 S.I. 299 of 2007
Maternity Protection Act 1994 (Extension of Periods of Leave) Order 2006 S.I. 51/2006

Disputes arising under the Act, with the exception of claims for unfair dismissal, may be referred to a Rights Commissioner. Such dispute must be referred within 6 months of the alleged breach, with an extension of 12 months allowed only in “exceptional circumstances”. An appeal to the Employment Appeals Tribunal must be made within 4 weeks of the decision of the Rights Commissioner. There is an appeal to the High Court from a determination of the Employment Appeals Tribunal on a point of law only.

A claim relating to dismissal can be brought under the Unfair Dismissal Acts 1977-2007. It is important to note that the one year continuous service requirement under the Unfair Dismissals Acts 1977-2007 does not apply where the employee is dismissed as a result of pregnancy, giving birth or breastfeeding, or any matters connected therewith.

Employment Equality Acts 1998 - 2011

The Employment Equality Acts 1998 - 2011 prohibit discrimination in employment on any of the nine protected grounds (gender, civil status, family status, sexual orientation, religious belief or lack of belief, age, disability, race including nationality, and membership of the Traveller community) and related conduct.

The Equality Act 2004 extended the scope of the 1998 Act by introducing the following provisions:

  • The extension of the scope of the 1998 Act to persons employed in a self-employed capacity;
  • The extension of positive action provisions to all nine grounds covered by the 1998 Act;
  • The extension of the age provision of the 1998 Act to persons under the age of 18 but over the minimum school leaving age and over sixty-five. Employers are still allowed to set minimum recruitment ages of 18 or under and to set retirement ages;
  • Provision for the requirement on employers to provide reasonable accommodation for persons with disabilities to be, in future, subject to it not imposing a disproportionate burden rather than nominal costs;
  • provision for the amendment of the redress provisions in respect of the defence forces in order to allow members of the defence forces access to the general redress mechanism in respect of all grounds covered by the 1998 Act (except age and disability).

Also the Social Welfare (Miscellaneous Provisions) Act, 2004 extensively amended the equality provisions of the Pensions Act, 1990. It prohibits discrimination based on any of the main protected grounds in regard to occupational pensions, with some exceptions, and to make substantial procedural changes.

Employment Equality Acts 1998 – 2011 (the “EEAs”) Application

The Acts apply to full time, part time and temporary employees, self-employed contractors, partners in partnerships, state and local authority office holders.

The Acts prohibit:

  • Direct discrimination
  • Indirect discrimination
  • Discriminatory failure to provide equal pay for equal work (or work of equal value)
  • Sexual harassment, or harassment based on any other protected ground
  • Victimisation

The Acts make it unlawful to discriminate in relation to employment, including:

  • pay,
  • conditions,
  • promotion or re-grading or grouping of posts,
  • vocational training,
  • work experience,
  • access to employment,
  • dismissal, and
  • collective agreements.

In addition, employers must provide reasonable accommodation for persons with disabilities. Reasonable accommodation means that an employer is obliged to take appropriate measures to enable a person who has a disability to have access to employment; participate or advance in employment; or to undertake training, unless the measures would impose a disproportionate burden on the employer. “What is disproportionate” will be relative to the size and resources of the employer.

Direct discrimination involves less favourable treatment based directly on the discriminatory ground. For example, a practice of not recruiting women would discriminate directly on the gender ground.

Indirect discrimination involves less favourable treatment which is not based directly on a discriminatory ground, but on an apparently neutral factor. The claimant must show that, in practice, this factor operates to disadvantage substantially more people in a protected category. For example, a practice of not recruiting employees with long hair might discriminate indirectly against women or against members of certain religions.

The Act provides a justification defence. In cases to which European Community law applies, the respondent must show that the practice is objectively justified, i.e. that it is appropriate and necessary for reasons unrelated to discrimination. In other cases, it is enough to show that the practice is reasonable in all the circumstances.

Harassment is defined as conduct which is unwelcome to the victim and may reasonably be regarded as offensive, humiliating or intimidating, related to any of the nine grounds.

In June 2012 a new Code of Practice was introduced in relation to harassment and sexual harassment at work entitled Code of Practice (Harassment) Order 2012. It revokes the previous Code of Practice dating from 2002 and sets out the most up to date best practice for employers in relation to taking steps to prevent and eliminate harassment and sexual harassment in the workplace.

Victimisation is prohibited by the Employment Equality Acts and the Equal Status Acts 2000 - 2001. Victimisation occurs where dismissal or other adverse treatment of an employee is a reaction by the employer to the employee in good faith complaining about or opposing unlawful discrimination, bringing proceedings or assisting another person in bringing proceedings.

Equal Pay – The Acts provide for equal pay for like work. Like work is defined as work that is the same, similar or work of equal value. Equal pay claims can be taken on any of the nine discriminatory grounds.

Exceptions and exclusions

The main general exceptions are persons not competent, capable and available to do the job (except where reasonable accommodation applies), positive action (which allows for positive action measures to prevent or compensate for disadvantages linked to any of the eight discriminatory grounds other than gender), and limited exceptions relating to family, gender, age or disability where the protected ground amounts to an occupational qualification, retirement or other benefits.

Enforcement

A person who is claiming discrimination, victimisation, discriminatory dismissal or equal pay under the Act can refer their claim to the Equality Tribunal. A claim for redress must be brought within six months of the most recent occurrence of the act of discrimination or victimisation (or within 12 months where reasonable cause can be shown to prevent timely referral

A claim of discrimination or equal pay on gender grounds only may be referred to the Circuit Court directly.

Transfer of undertakings

European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003

The Regulations are aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.

If the new or old employer involved in a transfer envisage measures in relation to their employees, they must consult representatives of the employees where reasonably practicable not later than 30 days before the transfer occurs and in any event in good time on such measures with a view to seeking agreement. Representatives in relation to employees employed in an undertaking business or part of a business who are affected or likely to be affected by the transfer of undertaking business or part of a business means trade unions, staff association or excepted body with which it has been the practice of the employee’s employer to conduct collective bargaining negotiations or in the absence of such a person or persons chosen under an arrangement put in place by the employer by such employees from among their number to represent them in negotiations with the employer.

An employee or trade union, staff association or excepted body on behalf of an employee may present a complaint to the Rights Commissioner that an employer has not complied with regulations in relation to information and consultation of employees

Dismissal – Termination Of Employment

Unfair Dismissals Acts 1977-2007

Aggrieved employees have a choice of legal remedy:

  1. An action for wrongful dismissal in the civil courts where breach of contract or breach of constitutional rights is alleged. There is a 6-year limitation period; or
  1. A claim within 6 months (12 months in “exceptional circumstances”) of the date of dismissal to the Employment Appeals Tribunal or Rights Commissioner under the Unfair Dismissals Acts 1977-2007.

Redress for unfair dismissal under the Unfair Dismissals Acts 1977-2007 apply to employees who:

  • are employed under a contract of employment whether oral or in writing;
  • have been dismissed or can prove that the employer's conduct was so unreasonable that resignation was justified;
  • have one year’s continuous service. This service is not necessary where dismissal is on grounds of pregnancy or related matters, race, age, religion or trade union activity
  • are aged 16 years and over;

The Acts also apply to persons who are employed by or through employment agencies or directly by the employer.

Presumption of unfair dismissal

Once it is accepted that the employee was dismissed then the onus is on the employer to prove that the dismissal was not unfair. Certain specific grounds for dismissal are also deemed to be unfair:

  • trade union membership/activity
  • pregnancy or matters related
  • exercising statutory maternity rights
  • religious or political opinions
  • age
  • sexual orientation
  • membership of the travelling community
  • taking legal action against the employer
Grounds substantially justifying dismissal include:
  • capability, competence or qualification
  • conduct
  • redundancy provided selection criteria and procedures are fair

A claim under the Unfair Dismissals Acts may be brought, in writing, to a Rights Commissioner or Employment Appeals Tribunal within 6 months of the date of any contravention (12 months in “exceptional circumstances”).

Redress:

  • reinstatement, or
  • re-engagement, or
  • compensation to a maximum ceiling of 2 years' remuneration. “Remuneration” includes salary, benefits in kind (car, VHI, lodgings etc.) and employer’s pension contributions.

Awards of compensation are usually based on the actual financial loss of the employee however in cases of no loss e.g. where the employee is immediately employed at the same salary the Tribunal has discretion to award up to four weeks remuneration.

Redundancy – Termination Of Employment

Redundancy Payments Acts 1967-2007
Protection of Employment Acts 1977-2007

Under the Unfair Dismissals Acts 1977-2007, the dismissal of an employee is an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. Redundancy is one such ground.

There are five alternative definitions of redundancy contained in the Redundancy Payments Acts 1967-2007. A dismissal due to redundancy may be justified where the circumstances giving rise to the dismissal fall within one or more of these five definitions, which are as follows:

  • the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed; or
  • the fact that the requirements of that business for the employee to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish; or
  • the fact that 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 dismissal) to be done by the other employees or otherwise; or
  • the fact that the employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained; or
  • the fact that the employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Once a genuine redundancy situation has been established, there is a further issue as to the fairness of selection of the employees to be made redundant. Selection for redundancy only arises where there are a number of employees “in similar employment”. If there are a number of employees in the same role, then such employees should be ‘pooled’ for the purposes of selection for redundancy. If there are other employees who occasionally, or frequently, carry out the employee’s functions, there may be a case for pooling these employees also. You would need to look at the particular circumstances very carefully.

Where selection issues do arise, the employer is obliged to use objective criteria for differentiating between one employee and another. The criteria should, insofar as possible, be capable of objective justification. Selection criteria could, for example, include length of service, performance, skills, technical competency, qualifications, training, occupation, relevant experience, future needs of the business and, potentially, attendance. All things being equal, and with no objective criteria to select one employee over another, an employer may resort to the “LIFO” rule (Last in First out). Ideally, the employer should have documentary evidence supporting the scores attributed under the respective criteria. Criteria must not be based on any of the nine discriminatory grounds (i.e. age, gender, religion, disability, race, civil status, marital status, membership of the Traveller Community or sexual orientation). Further, section 6(3) of the Unfair Dismissals Act 1977 provides that where an employer deviates from an agreed or customary selection procedure, a consequent redundancy dismissal will not be fair unless there were special reasons justifying the employer’s departure from the procedure. Accordingly, employers must consider what selection criteria, if any, they have applied in the past, and whether there is good reason not to use the same criteria again.

While there is no process prescribed for implementing redundancies in a “non-collective” situation, under Irish legislation, all dismissals, including redundancy dismissals, have to pass a test of “reasonableness”. Section 6(7) Unfair Dismissals Act 1977 provides that:

“in determining if a dismissal is an unfair dismissal, regard may be had... to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and... to the extent (if any) of the compliance or failure to comply by the employer in relation to the employee with [any dismissal procedure] or with the provisions of any code of practice”.

In the context of redundancy, the requirement to act reasonably has been held by the Employment Appeals Tribunal to mean that an employer should engage in some form of consultation with employees at risk of redundancy regarding the potential redundancy situation. The redundancy should not be presented as a “fait accompli”, but rather the employer should consult with the employee prior to any final decision being taken. An employer who does not engage in some form of consultation with an employee in advance, or who fails to consider if there are any options other than redundancy, will have difficulty defending an unfair dismissal claim.

Consultation should usually involve one or more meetings with the employee at risk before any decision is taken as regards the redundancy. The employer will be expected to show what consideration it gave to possible alternatives to redundancy. This would include considering any proposals that the employee puts forward. The potential for redeployment within the organization must certainly be explored, together with any other reasonable suggestions. For instance, where a reduction in the workforce is driven by economic motivation, the employer would need to consider suggestions by an employee for pay cuts, job-sharing, part-time etc.

Legal Entitlements

Where the employer decides to dismiss an employee who has more than 104 weeks’ service by reason of redundancy, the legal entitlements of the employee to be made redundant are as follows:

  • The employee must be given 2 weeks’ notice in writing of the proposed dismissal. The statutory notice must be given to the employee using Part A of the Form RP50, which is a prescribed statutory form. Failure to comply with this requirement will render the employer liable to a fine of up to €5,000.
  • During the 2 weeks’ redundancy notice period, the employee is entitled to reasonable paid time off to look for new employment, or to make arrangements for training for future employment.
  • The employee must be also be given a redundancy certificate by the employer not later than the date of the dismissal. This takes the form of Part B of the Form RP50 which should be signed by both the employer and employee and then copied to the employee together with the statutory lump sum payment.

The original purpose of part B the Form RP50 was to confirm that the employee had been paid his/her statutory lump sum so that the employer could claim a rebate from the Social Insurance Fund. As the employer rebate was abolished in January 2013, the Form RP50 is now largely redundant. However, until the legislation is updated accordingly, it still remains a statutory requirement to provide same, and failure to comply is technically a criminal offence.

  • An employee with over 104 weeks’ continuous service is entitled to a statutory lump sum redundancy payment, which is calculated as two weeks’ pay per year of service plus a bonus week. The figure for a weeks’ pay is subject to a cap of €600.
Collective Redundancies
  • The procedure for large scale redundancies is laid down by the Protection of Employment Acts 1977-2007 (“the Protection of Employment Acts”). The Protection of Employment Acts set down certain procedural requirements that an employer must follow in the event of collective redundancies.

    Collective redundancies mean dismissals arising from redundancy where, in any period of 30 consecutive days, the numbers being made redundant are:

    • at least 5 in an establishment normally employing more than 20 and less than 50 employees;
    • at least 10 in an establishment normally employing at least 50 but less than 100 employees;
    • at least 10 per cent of the number of employees in an establishment normally employing at least 100 but less than 300 employees; and
    • at least 30 employees in an establishment normally employing 300 or more employees.

    In a collective redundancy situation, the employer is obliged to notify employees and the Minister for Jobs, Enterprise and Innovation at least 30 days before the proposed redundancies are due to take place. The employer must provide the Minister with certain prescribed information about the proposed redundancy. There is also an obligation to inform and consult with employee representatives at least 30 days prior to the redundancies taking effect.

    Importantly, the European Court of Justice decided in the Junk case in 2005 that a redundancy took effect when the redundancy notice issued, not when the notice period expired and the employment ceased, as had previously been assumed. The effect of the judgment is that the consultation process must be completed before any redundancy notices can issue to the employees.

    Where there is a failure to consult in a collective redundancy situation, an employee or employee representative may bring a complaint to a Rights Commissioner within 6 months of the alleged contravention (in exceptional circumstances, this period can be extended by a further 6 months). Where a Rights Commissioner finds that there has been a failure to consult, he or she may:

    • make a declaration to that effect;
    • require the employer to comply with the requirements to consult; or
    • make an award of compensation to the affected employee up to a maximum of four weeks’ pay per affected employee.

    The recommendation of a Rights Commissioner may be appealed to the Employment Appeals Tribunal within 6 weeks of the date upon which the recommendation is communicated to the relevant parties.

    An employer who fails to initiate consultation with the employees’ representative; to supply them or the Minister with all of the relevant information, or to notify the Minister of the proposed redundancies is guilty of an offence and liable on conviction to a fine of up to €5,000.

    An employer who implements a collective redundancy before the expiry of the 30 day notice period in relation to notification to the Minister is guilty of an offence and liable on conviction to a fine not exceeding €250,000.

    An employer is also obliged to keep records of compliance with the Protection of Employment Acts for a period of not less than three years. Failure to do so is a criminal offence and will render an employer liable on conviction to a fine of up to €5,000.

The Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act, 2007 (“the 2007 Act”)

The 2007 Act provides that dismissals by reason of compulsory collective redundancy shall not be deemed redundancies where the dismissed employees are replaced by new workers effectively doing the same job and performing the same tasks but on new terms and conditions of employment which are materially inferior. Any such proposed dismissals will be deemed “exceptional collective redundancies”.

The 2007 Act provides for the establishment of a Redundancy Panel, to which referrals can be made by any employee, employee representative or employer where it seems that a redundancy might constitute an exceptional collective redundancy. If the Redundancy Panel believes that that the redundancy is an exceptional collective redundancy, it will request the Minister to refer the matter to the Labour Court for final determination.

Where the redundancy is determined by the Labour Court to be an exceptional collective redundancy, enhanced compensation of between 208-260 weeks’ pay will be payable to each of the affected employees.

The 2007 Act also removed the upper age limit of 66 for entitlement to statutory redundancy payments.

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