Forums For Adjudicating Employment Disputes
The Workplace Relations Commission is the first instance decision-making body for complaints made under employment legislation.
Claims are heard before a single Adjudicator and are adversarial in nature. It is now common for both parties to be legally represented although the Adjudicator has no power to award costs. In the region of 7,000 – 8,000 claims are initiated each year. The Adjudicator has the power to summon witnesses and documents.
All appeals from the WRC are to the Labour Court which sits in three member panels. Decisions of the Court may be appealed to the High Court on a point of law. Certain industrial relations matters come before the Labour Court as a decision-making body of first instance.
The civil courts play a relatively limited role in employment disputes. They are available to employees in actions such as wrongful dismissal, breach of contract and injunctive relief. They also serve in certain circumstances as an appellate body from decisions made by various tribunals and courts under statute.
The Health and Safety Authority is responsible for the promotion and enforcement of workplace health and safety in Ireland. The HSA monitors compliance with occupational health and safety legislation and in the event of breaches, conducts prosecutions.
The Main Sources Of Employment Law
Irish employment law is derived from a number of sources, including:
- Common law;
- The Irish Constitution; and
- European Union Law.
National Law And Employees Working For Foreign Companies
The Irish Constitution provides generally for the right to earn a livelihood. The specifics of Irish employment law are governed by statute and common law. The employment sphere is tightly regulated by legislation and in excess of 22 Acts of Parliament (many of which derive from European law) govern diverse aspects of the employer-employee relationship. In addition to Irish and European legislation, agreements with trade unions, custom and practice and the specific terms and conditions of individual contracts also govern the employment relationship. Case law (from the courts, the ECJ, the WRC and the Labour Court) and Codes of Practice are also relevant.
Once an employee is working in Ireland, they can claim the benefit of Irish employment legislation irrespective of the law governing their contract of employment and irrespective of whether their employer is an Irish company.
National Law And Employees Of National Companies Working In Another Jurisdiction
The statutory rights applicable in a particular jurisdiction will usually apply to an employee if the employee is physically present and working in that jurisdiction. Therefore, an Irish employer may not be able to prevent employees who are working abroad from relying on protections afforded by the employment law applicable in that country simply because their contract states that it is subject to the law of Ireland.
Data Privacy in Ireland is governed by the GDPR, the Data Protection Acts, various regulations and codes of practice.
The Data Protection Commissioner (DPC) is the independent authority in Ireland tasked with the provision of guidance in the area of data protection and, in some cases, the supervision and enforcement of data protection rights.
Legal Requirements As To The Form Of Agreement
Irish employers are not obliged to enter into a contract of employment with their employees. However, the Terms of Employment (Information) Act 1994 makes it mandatory to furnish certain information (such as remuneration levels and nature of the work) in writing. Written contracts are the norm and employment relationships ungoverned by written contracts are relatively unusual.
Employers are not required to offer a trial or probationary period to new employees. It is common practice, however, for a trial period of (usually) between three and six months to be provided for in employment contracts. There is nothing to prevent an employer from disposing of the employee’s services at the conclusion of the probationary period if the employer is not satisfied with the employee’s performance.
Hours Of Work
Irish working hours are governed by the Organisation of Working Time Act 1997. This comprehensive legislation provides for a number of additional protections including maximum working hours at night and regular rest breaks. The core principle is that the maximum average working week for the majority of employees cannot exceed 48 hours. Certain types of employees are dealt with differently, including the army and the police force.
Where an employee is engaged in unhealthy work (as defined by the Labour Ministry) the employee cannot work longer than 6 hours per day. Unhealthy work is similar to unsafe work.
Employees who work night shifts between 9pm and 6am cannot work longer than 7 hours.
Special Rules For Part-time Work
See “Part-time Employees”, below.
The National Minimum Wage Act, 2000 allows the Government to set a minimum wage. The current rate is €10.20 an hour. The legislation provides for a staggered system of rates for employees under 18 and trainee employees. The rate typically increases by small increments annually.
Employees are entitled to a minimum of 14 days holiday a year. This entitlement increases with each the year of service the employee completes. Employees are entitled to a maximum of 35 days holiday per year. Other holidays are included. Employees are also entitled to various mandatory daily and weekly rest periods.
The working hours of all persons under the age of 18 are regulated by the Protection of Young Persons (Employment) Act 1996. As a general rule, persons under 16 cannot be in full-time employment although employers may employ such persons to do “light work” (work for a fixed number of hours per day).
No legislation currently specifically governs sick leave entitlements and an Irish employer is not obliged to pay an employee during sick leave (although the present Government has committed to introducing Statutory Sick Pay in 2021). At present, it is fairly typical for an employee’s contract of employment to provide for a (usually short) period of paid sick leave dependent upon production of a doctor’s certificate. Unless provided for in individual contracts of employment, sick leave for longer than one month is usually unpaid. Provision is made in Irish law for state-provided illness benefit (subject to sufficient social insurance contributions) which can be claimed during periods of unpaid sick leave.
In line with the provisions of the Employment Equality Acts 1998-2015, employers are precluded from discriminating against disabled employees in the course of their employment. Equally, disabled interviewees cannot be treated differently to non-disabled interviewees. “Disability” is given an extremely broad definition in legislation.
Location Of Work/Mobility
The Terms of Employment (Information) Act 1994 provides that an employer must appraise the employee in writing of the place where they will carry out their work. This is usually referred to in the contract of employment.
Employers are under no obligation to operate or contribute to an employee pension plan. However, employers must facilitate employee access to Personal Retirement Savings Accounts. This is not an onerous obligation.
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
All female employees (entirely irrespective of length of service or working hours) are automatically entitled to Maternity Leave. The basic entitlement is 26 weeks maternity leave (during which the employee is entitled to state-provided maternity benefit) together with 16 weeks additional maternity leave (during which the employee has no entitlement to state-provided maternity benefit). Many Irish employers pay their employees during the first 26 weeks but it is highly unusual to do so during the second 16-week period.
Employers are under no obligation to pay employees during Adoptive Leave, although contracts of employment may allow for this (it remains quite rare in practice). The basic entitlement is to 24 weeks Adoptive Leave (during which the employee is entitled to state-provided benefit) together with 16 weeks additional unpaid Adoptive Leave (during which the employee is not entitled to state provided benefit).
A parent is also entitled to take Parental Leave for each child born or adopted. The leave must be taken before the child reaches 12 years of age, except where the child has a disability. In such cases, the age limit is 16 years. For adopted children, if the child is aged between 10 and 12 years at the time of the adoption, the leave must be taken within two years of the adoption order.
The amount of parental leave that can be taken was increased to 26 from 22 weeks in 2020.
Paternity Leave of two weeks within the first six months of the life of the child/six months since the adoption placement is available to the parents or adoptive parents (other than the mother) of the child. Again, subject to social insurance contributions, an employee may claim a benefit from the State during this period.
Each parent of a child is entitled to five weeks Parents Leave within the first two years of the child’s life, or within two year of the placement of the child in the case of adoption. Parents may apply for Parent’s Benefit from the State during this period of leave.
The Terms of Employment legislation provides that an employer must provide certain terms in writing. These include the title or nature of the work, the date employment began, amount of pay, details of rest periods, sick leave, pension and notice periods.
Leaving aside the mandatory provisions of the Terms of Employment legislation, which must be provided to an employee in writing, any employer and employee are free to include any terms they wish in a contract of employment.
Types Of Agreement
It is usual for the employment relationship to be governed by a formal contract of employment, frequently incorporated into a letter from the employer to the prospective employee which becomes binding when signed by both parties.
There are discrimination laws which prevent employees from being treated less favourably than other employees because of working part-time or working on a fixed term contract.
Legislation enacted in 2012, the Protection of Employees (Temporary Agency Work) Act, provides that an agency worker is entitled to the basic working and employment conditions they would benefit from if they were employed directly by the third-party employer.
The Act provides that the following qualify as basic working and employment conditions:
- Working time;
- Rest periods;
- Rest breaks;
- Night work;
- Overtime; Annual leave; or
- Public Holidays
There is one very significant exemption that relates to pay alone (commonly referred to as the ‘Swedish Derogation’. The Act provides that the obligation to provide the same basic working and employment conditions to agency workers does not apply to pay if:
- Before the worker and employment agency enter into a contract of employment, the agency notifies the worker that the provisions of the Act relating to equal pay will not apply; and
- Between assignments, the agency worker is paid at least half of the pay.
Fixed-term employees cannot be treated in a less favourable manner than comparable permanent employees unless the employer is able to justify (by reference to objective factors) any different treatment. The use of repeated fixed-term contracts is quite tightly regulated and employers cannot easily avoid providing an employee with a Contract of Indefinite Duration once a certain period of time has passed.
Equally, employees with part-time contracts cannot be treated in a less favourable manner than comparable permanent employees unless the employer is able to justify any different treatment by reference to objective factors.
Irish law provides for an action for “breach of confidence” where a person discloses confidential information imparted to him in circumstances where he was under an obligation not to disclose it. Irish employment contracts will generally always, where appropriate, include an enforceable confidentiality clause. Inclusion of such a clause in an employment contract is critically important in certain sectors where an employee may have access to patents or design processes.
Ownership of Inventions/Other Intellectual Property (IP) Rights
Irish employment contracts will invariably provide that the ownership of any intellectual property created by the employee in the course of employment will vest in the employer. Where this is not provided for, certain statutes will automatically provide that the employer owns the right to the creation. However, the rules are somewhat opaque and it is best practice to make specific provision in the contract of employment.
Employers should ensure they do not discriminate in hiring. A candidate who believes they have been discriminated against under any of the nine protected grounds can issue Workplace Relations Commission proceedings.
Although there is no concept of “background” checks in Ireland, certain employment situations may require Garda Vetting – a process conducted by the Irish police force. This only applies where the employee will be dealing with children or vulnerable adults.
Any processing of Personal Data during the application process must be conducted in line with Data Protection rules.
It is a criminal offence to employ a person who is not entitled to work in Ireland. A non-national from outside the European Economic Area and Switzerland may not be employed without a valid permission allowing them to work in Ireland.
Hiring Specified Categories Of Individuals
There are limited restrictions on the employer’s right to hire. Certain persons cannot be required to perform certain duties. Children under a certain age, for example, cannot be employed for more than a fixed number of hours per day.
Outsourcing And/Or Sub-Contracting/Temporary Agency Work
An employee works under a contract of service. An independent contractor provides services under a contract for services. In Ireland, the statutory protections afforded by employment statutes in most cases only apply to those deemed to be employees. In addition, an individual’s status as an employee or self-employed person will affect whether an employer has certain tax obligations in respect of that individual. In circumstances where an employer seeks to outsource work by hiring independent contractors rather than employees, this distinction between a contract of service and a contract for services is a very important one.
The test is as to whether a worker is an independent contractor or an employee is a qualitative one and there is no single factor which determines whether a worker is an independent contractor or an employee. It is necessary to look at the totality of the situation, with no single factor being determinative of the relationship. The more indicators of an independent contractor relationship that are present, the more likely the contract will be deemed to be a contract for services. In general terms, the more business-like the relationship overall and the greater the capacity of the service provider to generate a profit by reference to the level or efficiency of their work, the more likely the relationship will be deemed to be a contract for services.
In practice, the Irish Courts/Tribunals have examined the true nature pf the parties’ legal relationship. Depending on the particular facts, it would not be unusual for the Courts/Tribunals to find that the so-called “independent contractor” is in fact an employee and that the termination of the contractual arrangements between the parties amounts to an unfair dismissal.
It is likely that Ireland will see increasing numbers of cases relating to employment status and the “Gig Economy” in the coming years.