Civil Litigation Ireland

The information given herein is for guidance only. No responsibility is accepted for any error or inaccuracy . Full Legal advice should be obtained.

• The Employer
• Equality
• Working Hours
• Exemptions
• Holidays
• Maternity Leave
• Adoptive Leave
• Parental Leave/Force Majeure Leave
• Part Time Employees
• Protection of Young Persons
• Terms of Employment
• Redundancy
• Dismissal
• Minimum Notice
• Disciplinary Procedures
• Health & Safety

Agency Workers are generally defined as workers who register with Employment Agencies and take temporary work with third parties. Until recently they were neither employees of the employment agency nor employees of the Client Company. Therefore they were not protected under employment legislation.Lately however legislative changes have ensured that agency workers are covered in the same manner as direct employees of the employer. The provisions of the following Acts apply to them:

THE EMPLOYER

In most cases the Employer will be the agency. However, in certain cases the Employer may be deemed to be the provider of the work i.e. the company in whose physical premises the agency worker actually works.

EQUALITY

Employment Equality Act, 1998.

This Act replaces the Anti Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1997.

New Discriminatory Grounds: Family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community. The old discriminatory grounds of gender and marital status remain. There are exemptions provided in various circumstances.

Application: With certain very limited exceptions, to all types of employment, access to employment, training and educational facilities.

Increased access to the legislation: Agency workers will now be deemed to be employed under a contract of employment.

Pay Discrimination: Express provisions dealing with indirect discrimination are included for the first time. Provisions in relation to same place requirement have been deleted and the definition of associated employer has been widened.

Indirect Discrimination/Direct Discrimination: Indirect discrimination compares an apparently gender neutral provision between two groups, one having a relevant characteristic and the other not having this relevant characteristic eg male/female -married/unmarried etc. If the provision impacts more heavily on the group having the same characteristic than on those without it, then it may be discriminatory. It must, in matters to which European Law applies, be objectively justified i.e. it must be necessary and appropriate to the objective of the employer. In other cases it must be reasonable.

Positive Action Measures: The Act permits measures to promote equal opportunities for men and women in employment or to facilitate integration into the workplace for persons over 50, those with a disability, or members of the travelling community.

Harassment: The Act defines sexual harassment for the first time and introduces the concept of 'reasonableness' into the standard applicable to judicial consideration of sexual harassment cases. Behaviour which is offensive in the eyes of the person being harassed may be deemed harassment. Measures to combat harassment on other discriminatory grounds are included.

Vicarious Liability: The Act makes employers vicariously liable for the acts of their employees in all cases unless they can show that they have taken reasonable steps to implement a policy against discrimination.

Procedures and Enforcement: Two new Authorities have been set up - The Equality Authority and the Director of Equality Investigations. Parties may in certain cases eg harassment, take proceedings directly in the Circuit Court. The alternative is to make a complaint to an equality officer with a subsequent appeal if necessary to the Labour Court. The Equality Authority has power to carry out equality reviews of employers, draw up action plans and serve notices requiring substantive information to be supplied.

WORKING HOURS

Organisation of Working Time Act, 1997.

The Act regulates working hours as follows:

EXEMPTIONS

Certain sectors of activity are exempt from the Act. Most of the derogations are by means of statutory instruments. Where there are specific exemptions in the Act, in almost all cases an equivalent compensatory rest period must be given.

There are exemptions from the daily and weekly rest provisions for split shift workers and from other provisions for workers where there may be exceptional or unforseen circumstances or emergencies.

HOLIDAYS

Organisation of Working Time Act, 1997 (Part 111).

Annual Leave

Four working weeks where at least 1365 hours have been worked in the leave year or one third of a working week where the employee works at least 117 hours in a calendar month or 8% of the hours worked in a leave year.

Periods of sick leave are not counted as hours worked but maternity leave and parental leave are.

Holiday pay must be paid in advance. If the pay is static it is the normal rate for the working hours in the week immediately preceding the holiday. If it varies it is the average for the normal working hours in the 13 weeks before the holiday.

The employer can determine the time of annual leave but must give one month's notice and have regard for the employee's family circumstances. Annual leave must be taken within the leave year or by agreement within six months of its end. Pay cannot be given in lieu. If any employee falls ill on annual leave, it shall not be counted as annual leave.

Public Holidays

All employees are entitled to public holidays but may at the option of the employer be given either a paid day off or a paid day off within a month or an extra day's annual leave or an additional day's pay.The employer can be requested not more than 21 days before the holiday to nominate the option he proposes to take.

Absence

No entitlement where employees are absent from work for 52 weeks due to an occupational illness; 26 weeks in the case of other illness or injury; 13 weeks for authorised absence. No entitlement during a strike.

Public Holiday Work.

An Employee who normally works on a public holiday is entitled to an additional day's pay. Otherwise they are entitled to one fifth of a week's pay.

The calculation of pay for a public holiday is the same as that for annual leave.

Where an employee leaves employment on the week ending on the day before a public holiday then they will be entitled to pay for that holiday provided they have worked for the employer during the preceding four weeks.

MATERNITY LEAVE

Maternity Protection Act, 1994

Rights under this Act apply to all pregnant employees, all employees who have given birth in the previous 14 weeks, and all employees who are breast feeding up to 26 weeks after the birth, provided they have notified their employer of their condition. No minimum length of service is required.

Qualifying employees are entitled to:

Employees must give employers at least four weeks written notice before:

Other categories of protective leave under the Maternity Protection Act:

Natal Care Leave

Employees are entitled to paid time off to receive ante-natal or post-natal care. Two weeks notice of appointments should be given to the employer where possible.

Father's Leave

If a mother dies during maternity or additional maternity leave, the father may avail of the outstanding balance of the leave.

Health and Safety Leave

Employers are required to identify any risk to which employees covered by the Maternity Protection Act might be exposed. If a risk is established, the employer should remove it or transfer the employee to suitable alternative work. If no such work is available, the woman must be granted health and safety leave.

Employers are obliged to pay employees for the first three weeks of health and safety leave, after which social welfare benefits may apply.

Health and Safety provisions may also apply to employees who normally work at night (subject to medical certification).

Disputes arising under this Act may be referred to a Rights Commissioner (six-month time limit); this decision may be appealed to the Employment Appeals Tribunal within four weeks.

ADOPTIVE LEAVE

Adoptive Leave Act, 1995.

An employed adopting mother or sole male adopter is entitled to 10 weeks adoptive leave and a further four weeks additional adoptive leave.In general, the leave commences on the day of placement, but, in the case of foreign adoption, some or all of the leave may be taken immediately before the day of placement.

Where an adoptive mother dies, the adopting father is entitled to a period of leave equivalent to the outstanding balance of the adopting mother's leave.

Employees must give at least four weeks written notice of:

An employer is also entitled to be notified of the date of placement and given a certificate of placement as soon as is practicable.

Social welfare benefit, if applicable, is available during adoptive leave.

Employment rights are protected during adoptive and additional adoptive leave.

PARENTAL LEAVE/FORCE MAJEURE LEAVE

Parental Leave Act, 1998

Fourteen weeks' unpaid leave is available to parents of each child born or adopted on or after 3 June 1996.

Notification (six weeks in advance) and confirmation must be given to the employer in writing.

An employer may postpone the leave for up to six months on certain stated business grounds.

Employment rights

All employment rights other than remuneration or pension entitlements are protected during parental leave.

Employees are also entitled to return to the same job or suitable alternative employment when the leave ends.

Force Majeure Leave

This is paid leave which arises when injury or illness of a close relative (as specified in the Act) makes the immediate present of the employee indispensable.

Maximum allowance is three days in one year or five days over three consecutive years. Part of a day is counted as a full day.

All employment rights are protected during force majeure leave.

PART TIME EMPLOYEES

Worker Protection (Regular Part-Time Employees) Act, 1991

This Act extends to regular part-time employees the right to minimum notice, holidays, redress for unfair dismissal, redundancy and insolvency protection and worker participation where applicable. A regular part-time employee is an employee who:

NB There is no eight hour/13 week minimum service threshold under the following Acts which apply to all Employees:

PROTECTION OF YOUNG PERSONS (EMPLOYMENT) ACT, 1996

This Act is designed to protect young workers and to ensure that work during the school year does not put a young person's education at risk.

The Act applies generally to employees under 18 years of age:

Conditions of Employment, Hours of Work and Rest Periods

Maximum weekly working hours for under 16 years ( 14/15)

Term time Nil

Holiday work 35

Work experience 40

During the summer holidays under 16's must have at least 21 days free

Time off and rest breaks for under 16's:

Half hour rest break: after four hours work

Daily rest break: 14 consecutive hours off

Weekly rest break: Two days off, as far as practicable to be consecutive

Working hours, time off and rest breaks for 16-17 year olds:

Maximum working day: Eight hours

Maximum working week: 40 hours

Half hour rest breaks: After four and a half hours work

Daily rest break: 12 consecutive hours off

Weekly rest break: Two days off, as far as practicable to be consecutive

Night and Early Morning Work

Under 16's may not be required to work before 8.00 a.m. or after 8.00 p.m. In general 16 and 17 year olds may not be employed before 6.00 a.m. or after 10.00 p.m. During School holidays and on weekend nights 16 and 17 year olds who have no school the next day may work up to 11.00 p.m. where there are exceptional circumstances and the Minister is so satisfied.

Before a child under 16 is employed, written permission must be furnished by the parent or guardian.

A register must be kept containing the following information on any person employed under 18:

Regulations under the Act require Employers to give to their workers aged 18 a copy of the official summary of the Act.

TERMS OF EMPLOYMENT

Terms of Employment (Information) Act, 1994

This legislation requires employers to provide a written statement to Employees setting out terms of employment.

The Act applies to any person working under a contract of employment or apprenticeship or employed through an employment agency or in the service of the state.

The Statement detailing the terms and conditions of employment must be given to a new employee within two months of commencing employment.

Information to be included in the statement:

The statement must be signed and dated by the Employee or on his behalf.

The employer is obliged to keep this statement for a period of one year after the termination of the employment.

The employer may include additional terms and conditions e.g.:

Employers must, within 28 days of the commencement of the employment, give new staff a written summary of the procedures that would be used should it become necessary to dismiss them. Employers may consider including this in the terms of employment.

Fixed term or specific purpose contracts may be excluded from the Unfair Dismissals Acts. In relation to such a contract, the employer must:

See also Payment of Wages Act 1991.

REDUNDANCY

Redundancy Payments Acts, 1967-1991

An employee qualifies for statutory redundancy pay if he or she has 104 weeks continuous service with the employer. Dismissal must result by reason of redundancy which is very widely defined. "Redundancy" does not merely arise where a business closes down or where an employer reduces the size of the workforce. The definition includes circumstances where the employer decides that different or even additional skills or qualifications are required for the job.

The calculation of statutory redundancy pay is based on a ceiling of £300 salary per week. A worker qualifies for one week's payment for each year of service if he or she is aged over 41 and a half week's pay for each year of service under 41, plus one additional week's pay.

Employers qualify for a 60% rebate from the Redundancy Fund maintained by the Department of Enterprise, Trade and Employment.

Disputes over entitlement are referred to the Employment Appeals Tribunal. Employees being made redundant have the right to time off during the notice period to find alternative work.

Where collective redundancies occur, the workers concerned and their representatives have certain consultation and information rights under EC Legislation.

DISMISSAL

Unfair Dismissals Acts, 1977-1993

Aggrieved employees have a choice of legal remedy:

Redress for unfair dismissal is based on legislation. The Acts apply to employees who:

Presumption of unfair dismissal:

Dismissal is always presumed to be unfair once proven. This means that the onus of proving fairness is on the employer. Certain specific grounds for dismissal are also deemed to be unfair:

Grounds substantially justifying dismissal:

Redress:

Awards of compensation are based on the actual financial loss of the employee.

MINIMUM NOTICE

Minimum Notice and Terms of Employment Acts, 1973 & 1991

Employees are entitled to statutory minimum notice or pay in lieu except where they are dismissed for misconduct. The statutory entitlements to minimum notice are based on periods of continuous service and are as follows:

Service Notice

13 weeks - 2 years 1 week

2 - 5 years 2 weeks

5 - 10 years 4 weeks

10 - 15 years 6 weeks

over 15 years 8 weeks

An employee must give an employer at lest one week's notice unless the employment contract specifies to the contrary.

Employers and employees may agree longer periods of notice.

Redress for breach of the Minimum Notice and Terms of Employment Acts, 1973 and 1991 is obtained by application to the Employment Appeals Tribunal within six years of the breach.

DISCIPLINARY PROCEDURES

Unfair Dismissals Acts 1977-1993

There is a legal obligation on all employers to supply all employees, not later than 28 days after commencing employment, with written procedures which the employer will observe before dismissing an employee. Any changes to the procedure must be notified to the employee within 28 days of the change being made.

The use of disciplinary procedures is strongly recommended to employers where an employee's conduct, attendance or performance is of concern. Failure to use or comply with procedures may be taken into account by the Employment Appeals Tribunal in awarding compensation.

Procedures should normally include a set of graduated steps from verbal and written warnings to suspension on pay and eventually dismissal. There is no set rule about how many warnings there should be in any case. The test is: what would a reasonable employer do? Such an employer notifies his staff of any shortcomings and suggests improvements. Such an employer listens to any response the worker has to make. In other words, the rules of natural justice apply. Legal advice should be taken.

In cases of serious misconduct, it may be appropriate to move to a later stage of the procedure much more quickly.if requested, an employer must give the reason(s) for dismissal in writing within 14 days of the request.

See Labour Relations Commission Code of Practice on Disciplinary Procedures and see LRC website (www.lrc.ie)

Industrial relations issues are dealt with under the Industrial Relations Acts 1946-1990.

HEALTH AND SAFETY

A huge body of legislation has developed on health and safety matters in the workplace in the last ten years or so, mostly derived from European Community Law. There are general rules of application and there are detailed directives and regulations dealing with particular sectors and situations. The following is an outline of the main provisions of the two most important pieces of legislation.

Safety Health and Welfare at Work Act, 1989.

General Application Regulations, 1993, implementing the EC Framework Directive of 1989.

There is a duty on all employers to ensure the health, safety and welfare of all their employees including:

Safety representatives have to be appointed by the employees from among their number at their place of work and employers must notify the safety representatives when Health and Safety Authority Inspectors visit.

Employers must provide a Safety Statement. They are obliged to carry out far-reaching consultation with and participation by their workers in health and safety matters. They must train their Staff.

Civil liability for employers may arise at common law but breach of the Safety Health and Welfare at Work Act, 1989 is not actionable in itself. Where the Regulation breached is derived from EC law, such as a directive, civil liability does arise. Legal advise should be taken where any doubt arises.

The Health and Safety Authority was set up by the 1989 Act. It polices all the legislation on health and Safety in the workplace. Contravention of almost any aspect of the legislation is a criminal offence and the HSA has the power to prosecute either summarily or on indictment. The Health and Safety Authority has an extensive website (www.hsa.ie.osh). A list of all the regulations is kept there along with news of developments.

Examples of some of the areas covered by regulation are: