1 Employment Law in Ireland A guide for international employers Irish Tax Firm of the Year 2013, The International Tax Review Client Choice 2013, International Law Office Financial Times Matheson is the only Irish law firm commended by the Financial Times for innovation in corporate law, finance law and corporate strategy. Dublin London New York Palo Alto
2 This guide sets out an overview of Irish employment law for international employers looking at establishing or acquiring operations in Ireland. It covers the key rights and obligations which arise from the commencement, and during the course of employment and also on termination of employment. 1
3 Contents 2 1 Rights Arising at Commencement and During the Course of Employment 3 Contracts of Employment 4 Statement of Terms and Conditions 4 Information on Dismissal 4 Information relating to Wages 4 Minimum wage 5 Employment equality 6 Part-time and fixed-term workers 7 Paid Leave 8 Working time 8 Maternity Leave 9 Adoptive Leave 9 Health and Safety Leave 9 Parental Leave 9 Carer s Leave 10 Agency workers 10 Employment Permits 11 Green Card Permit Scheme 11 Work Permits 11 Intra-Company Transfer Permit Scheme 11 Atypical Working Scheme 12 Legislation 12 Health and safety 12 Sick pay 12 2 Rights Arising on Termination of Employment 13 Notice 14 Redundancy 14 Dismissal 14 Justifying Dismissal 15 Enforcement 16 Competition law / restraint of trade 16 3 Collective Rights 17 Trade union recognition 18 Works councils 18
4 1 Rights Arising at Commencement and During the Course of Employment
5 1 Rights Arising at Commencement and During the Course of Employment 4 Contracts of Employment Unlike in the US, written contracts of employment are quite common in Ireland at every level. This is not a statutory requirement (save as set out below) but most international employers operating in Ireland provide a written contract of employment and also an employee handbook or written HR policies as a matter of best practice. At a minimum, an employer is required to provide the information listed below. Statement of Terms and Conditions Under the Terms of Employment (Information) Act 1994 the following information must be provided in writing by the employer to the employee, not later than two months after the commencement of employment: names of employer and employee; address of employer in Ireland; place of work; title or nature of the job (ie, job description); date of commencement of employment; duration of a temporary contract; remuneration of employee; when remuneration is payable and pay reference period; hours of work, including overtime; terms and conditions relating to paid leave, sick leave and pensions; requisite notice periods on the part of employee and employer; reference to collective agreements affecting the terms and conditions of employment; and entitlement to rest periods and breaks. Where an employee works outside Ireland for more than one month, an employer must also provide the following information: period of employment outside Ireland; currency in which payment is to be made; details of benefits in cash or kind; and terms and conditions governing employees repatriation. In practice, most employers will take the opportunity to expand the document into a more comprehensive contract covering other terms and conditions. Information on Dismissal The Unfair Dismissals Acts ( UDA ), require an employer, within 28 days of entering into the contract of employment, to inform an employee of the procedure that will be followed if the employee is going to be dismissed. This will usually be satisfied by issuing a copy of the employer s disciplinary procedure. The employer must also, if requested, confirm to the employee in writing, within 14 days of the request, the reasons why the employee was dismissed. Information relating to Wages Under the Payment of Wages Act 1991 employees are entitled to a written statement showing the gross wages payable and the nature and amount of deductions. Deductions may only be made where appropriately authorised, either by statute, by contract, or with the consent of the employee.
6 1 Rights Arising at Commencement and During the Course of Employment 5 Minimum wage The National Minimum Wage Act 2000 applies to persons of any age who work under a contract of employment and includes part-time employees. The national minimum wage is now fixed at 8.65 per hour. Any contractual provision which provides for less favourable pay than that to which an employee is entitled under the Act is automatically modified to the extent necessary to comply with the Act. In calculating the minimum hourly rate under the Act, working hours means the greater of: the hours of work of the employee specified in a written document, such as a contract of employment, statement of terms and conditions or any collective agreement, registered employment agreement or employment regulation order that relates to the employee; or the actual total hours worked by the employee, or which the employee is required by the employer to be available for work and is paid as if the employee was carrying out work. Working Hours is defined to include time such as overtime, time spent travelling on business, and time spent on training courses during normal working hours, but does not include, for example, travel to and from work or time spent on annual, sick, protective, adoptive, or parental leave, layoff, strike or lockout. Separate provisions apply to employees who control their own working hours. An employee s average hourly rate of pay will be calculated over a specified pay reference period by dividing reckonable pay under the Act by the number of hours worked during such a period. The hourly rate should then be compared with the minimum hourly rate as prescribed in order to establish compliance with the Act. In the event that the hourly rate of pay is less than the statutory rate, such underpayment must be paid to the employee. The maximum pay reference period is one calendar month. All employees covered by the Act who are over the age of 18 are entitled to the minimum hourly rate of pay, unless they fall into a category to which a sub-minimum hourly rate of pay applies. Sub-minimum rates apply to employees under the age of 18, job entrants who enter employment for the first time after reaching the age of 18 and trainees, to whom a reduced rate of the national minimum hourly rate applies. For the purposes of calculating pay, an employer may include basic salary, shift premium, service charge distributed through the payroll, monetary value of board and lodgings, piece and incentive rates, commission and bonuses that are productivity-related. However, payments such as overtime premia, callout premia, public holiday premium, Saturday and Sunday premium and any payment-in-kind or benefit-in-kind will not constitute reckonable pay for the purposes of the Act.
7 1 Rights Arising at Commencement and During the Course of Employment 6 Employment equality Under the Employment Equality Acts ( EEA ), discrimination on the following nine grounds is prohibited: gender, civil status, family status, sexual orientation, religious belief, age, disability, race (includes colour, nationality or ethnic or national origins) and membership of the Traveller community. Some of these grounds will also be covered in other EU member states under broader EU wide equality directives, so international employers with operations in other EU locations may already be familiar with some of these issues. However, not all nine will be covered. Discrimination is defined as the treatment of one person in a less favourable manner than another person in a comparable situation, on any of the nine grounds specified above. It may be direct or indirect, the main difference being that indirect discrimination is only permissible if objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Indirect discrimination is broadly comparable to the US concept of disparate impact discrimination. Discrimination is prohibited not just in relation to conditions of employment, training, promotion and dismissal, but also in relation to access to employment (ie, the recruitment process), advertising, services of employment agencies, vocational training and membership of trade organisations and professional bodies. The Act provides for implied entitlements in contracts of employment to equal pay (except for pensions) and equal terms and conditions of employment. Employers are liable for their employees acts, including acts of discrimination, whether or not that act was done with the employer s knowledge or approval, provided the act was committed during the course of employment. It is a defence for an employer to prove it took such steps as were reasonably practicable to prevent the employee from carrying out such acts in the course of employment. Where an employee is harassed because he or she belongs to one of the nine protected groups, the employer is liable for the acts of the harasser, unless the employer has taken reasonable steps to prevent harassment of the employee or to reverse its effects. Furthermore, an employer may also be liable for the actions of a client, customer or other person with whom the employer might reasonably expect the employee to come into contact with in the course of his or her employment. Positive action measures are permitted to prevent or compensate for disadvantage linked to the nine discriminatory grounds, other than gender. As regards gender, positive action measures that promote equal opportunities for men and women, in particular by removing existing inequalities that affect women s opportunities, are permitted. There are special provisions in relation to disabled persons. An employer is required to do what is reasonable to accommodate the needs of a person who has a disability, unless such measures would impose a disproportionate burden on the employer, taking into account financial and other costs, the scale and financial resources of the business, and the possibility of obtaining public funding or other assistance. The EEA are monitored by the Equality Authority. It conducts equality reviews, develops action plans, and reviews legislation. Complaints of breaches of the EEA must be brought to the Equality Tribunal. Where discrimination is alleged, the Equality Tribunal will normally seek to reach a mediated settlement if both parties agree, otherwise an Equality Officer will be appointed who will investigate a complaint and issue a decision. Complaints must be referred to the Equality Tribunal within six months of the discriminatory acts complained of. If the Equality Tribunal finds that there has been discrimination, it may order arrears of pay where the complaint concerns discrimination in pay. Where the complaint concerns equal treatment, it may order compensation of up to a maximum of two years remuneration. Where an employee is dismissed, allegedly on the basis of discrimination and / or victimisation, he or she must refer the case to the Equality Tribunal within six months of the dismissal. The Equality Tribunal has the power to order damages and may also order reinstatement or reengagement. Decisions may be appealed to the Labour Court, with a right of appeal to the High Court on a point of law. The Equality Tribunal does not have the power to award costs against the losing party. An employee who alleges that he or she has been discriminated against on gender grounds has the option of going directly to the Circuit Court, rather than going to the Equality Tribunal. In this case, the only limitation on the level of award is a six-year limit on backdating of compensation or arrears of remuneration.
8 1 Rights Arising at Commencement and During the Course of Employment 7 Part-time and fixed-term workers The Protection of Employees (Part-Time Work) Act 2001 prohibits less favourable treatment of an employee due to their part-time status, in relation to conditions of employment, including remuneration and related matters. A part-time employee is defined as an employee whose normal hours of work are less than the hours worked by a comparable full-time employee. Whilst employers are not under an obligation to grant requests for part-time employment, a Code of Practice on Access to Part-Time Working, published in 2006 by the Labour Relations Commission, gives employers guidelines on dealing with this issue, to which employers should have regard when considering any request. The Protection of Employees (Fixed-Term Work) Act 2003 provides similar protection to a fixed-term employee, who is defined as a person who enters into a contract of employment directly with an employer, where the end of the contract concerned is determined by an objective condition, such as arriving at a specific date, completing a specific task or the occurrence of a specific event. This Act prohibits less favourable treatment of an employee due to his / her fixed-term status in respect of conditions of employment compared to a comparable permanent employee. Both part-time and fixed-term employees may be treated less favourably than their full-time or permanent comparators where such treatment is justified on objective grounds and is based on considerations, other than the status of the employee as a part-time or fixed-term employee and involves the achievement of a legitimate objective of the employer, with such difference in treatment being necessary for that objective. The maximum duration for which an employee can be employed on successive fixed-term contracts is now four years, unless there are objective grounds justifying the renewal of the fixed-term contract. An employer is obliged to inform the fixed-term employee of any permanent vacancies which arise in the undertaking. Rights under both Acts may be enforced by a Rights Commissioner, whose decision may be appealed to the Labour Court.
9 1 Rights Arising at Commencement and During the Course of Employment 8 Paid Leave Under the Organisation of Working Time Act 1997, an employee who works in excess of 1,365 hours in a leave year is entitled to four working weeks paid annual leave, or one third of a working week for each month in which the employee worked at least 117 hours, or 8% of the hours worked in a leave year, subject to a maximum of four working weeks. Employees who are on maternity leave or health and safety leave are deemed to be in employment while on such leave, and are therefore entitled to their entire annual leave entitlement. Employers may of course provide more than the statutory minimum annual leave, and most international employers operating in Ireland provide up to 25 days annual leave, based on the particular employee s service. Employees are also entitled to nine further paid leave days for public holidays. Working time The maximum average hours that an employee may work is 48 hours per week, not including rest or lunch breaks. The average is generally worked out over a four-month reference period. Employees are entitled to rest periods of at least 11 consecutive hours in every 24-hour period, and must have at least one weekly rest period of 24 consecutive hours. This rest period must include a Sunday unless the employer specifically provides otherwise in the contract of employment. Sunday workers are normally entitled to receive additional pay. There are also rules governing night workers. There are very significant exceptions to the rules on working time, in particular in respect of those employees who are responsible for determining their own working time. There are also provisions dealing with keeping of records and disputes. In particular, any employer that does not have an electronic means of time recording is required to record on a prescribed statutory form the following information: the name and address of each employee, his / her social insurance number, and a brief job description; a copy of the statement of terms and conditions provided to each employee, pursuant to the Terms of Employment (Information) Act 1994; the days and total hours worked in each week by each employee; any annual leave or public holiday entitlement granted each week to each employee, and payments made to each employee in respect of that leave; any additional day s pay in lieu of public holiday entitlement; and a copy of a written record of notifications required to be issued to employees concerning starting and finishing times.
10 1 Rights Arising at Commencement and During the Course of Employment 9 Maternity Leave The Maternity Protection Acts 1994 and 2004 give all female employees a basic entitlement to take maternity leave of 26 consecutive weeks, regardless of their length of service. There is no obligation on an employer to pay an employee on maternity leave. The employee may, however, be entitled to social welfare payments at the rate of 80% of her earnings, subject to a current maximum of per week from 6 January 2014, provided she has accrued sufficient pay-related social insurance contributions in the year previous to the maternity leave. An employee is also entitled to 16 additional weeks of unpaid maternity leave. This additional leave carries no entitlement to social welfare payments. An employee must give four weeks notice in writing to the employer of her intention to take maternity leave. Employees are also entitled to paid time off during working hours for pre and postnatal medical appointments. Notice of termination of employment given during maternity leave is void. An employee has a right to return to the same job which she held prior to going on maternity leave. If this is not reasonably practicable, the employer must provide suitable alternative work. This work must be appropriate, suitable for the employee in question and be on no less favourable terms or conditions for the employee. The Maternity Protection (Amendment) Act 2004, introduced a number of changes to arrangements for maternity leave in the event of sickness, hospitalisation or death of a child. In certain circumstances, related leave will be available to the father of the child. There are also provisions for expectant mothers to attend one set of ante-natal classes without loss of pay, provision of a once-off right to fathers to paid time off to attend two ante-natal classes immediately prior to the birth of the child, specific provisions for breast-feeding mothers in relation to working hours and breaks without loss of pay and provision that an employee s absence from work on additional maternity leave will count for all employment rights associated with the employment (except remuneration and superannuation benefits) such as seniority and annual leave. Adoptive Leave An adopting mother or sole adopting father is entitled to 24 weeks adoptive leave. Employees availing of this leave may be entitled to receive social welfare payments provided sufficient social insurance contributions have been paid. Employees are also entitled to additional unpaid adoptive leave for a further 16 weeks. No social welfare payments are payable in respect of that period. As with maternity leave, on return to work the employee has a right to the job held by him / her prior to availing of adoptive leave, or to suitable alternative work if this is not reasonably practicable. Adopting parents are entitled to paid time off work to attend preparation classes and pre-adoption meetings with social workers required during the pre-adoption process. Furthermore, an employee s absence from work on additional unpaid adoptive leave will count for all employment rights (except remuneration and superannuation benefits) associated with the employment, such as annual leave and seniority. Health and Safety Leave This applies to pregnant employees, employees who have recently given birth and employees who are breastfeeding. The employer must carry out a risk assessment on the health and safety of employees who are pregnant, have recently given birth or are breast-feeding. If this reveals a risk, and it is not possible to adopt preventative measures, then the working hours or conditions should be adjusted or the employee should be provided with other suitable work. If none of these options are feasible, the employee is entitled to health and safety leave, which will be paid for the first 21 days. Thereafter, the employee may be entitled to receive social welfare payments. Parental Leave Parents are entitled to 18 weeks parental leave in respect of a natural child, adopted child or child in respect of whom the employee acts in loco parentis. This leave must be taken before the child reaches eight years of age. This upper age limit can be extended in certain circumstances, where an adopted child is involved. In the case of a child with a disability, leave may be taken up to the child reaching 16 years of age. Both the father and the mother may take parental leave. There is no obligation on the employer to pay the employee during parental leave, nor is there any entitlement to social welfare payments during this time. In order to avail of parental leave, an employee must generally have one year s continuous service, although there are some exceptions. Parental leave is limited to 18 weeks per twelve month period where an individual has more than one child, subject to certain exceptions. The 18 week period may be taken in one continuous period, or in separate blocks of a minimum of six weeks with ten weeks (or less by agreement) between each block, or with the employer s agreement, the employee may separate the leave into periods of days or even hours up to the 18 week maximum. An employer has the right to postpone parental leave, if the leave would have a substantial adverse effect on the operation of the business. Parental leave may not be postponed for more than six months. However, if the reason for the postponement is seasonal variations in the volume of work, the leave may be postponed for two periods of six months, in respect of the same child. Parental leave entitlements may be transferred from one parent to another, in whole or in part, where both parents are employed by the same employer with the employer s consent. An employee is entitled to return to work at the end of a period of parental leave on the same terms and conditions held prior to availing of parental leave or, if this is not reasonably practicable, to suitable alternative employment. This employment must be appropriate and suitable for the employee in question and constitute no less favourable terms or conditions for the employee.
11 1 Rights Arising at Commencement and During the Course of Employment 10 An employee has a right to request changes to his or her working hours or patterns for a set period of time following his or her return from parental leave. The request must be made in writing no later than six weeks before the commencement of the proposed set period. An employer must consider the request but is not obliged to grant the requested changes. There is also an entitlement to force majeure leave whereby an employee may leave work when his or her immediate presence is indispensable due to the injury or illness of certain close relatives, including a person with whom the employee is in a relationship of domestic dependency. A person residing with the employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care and includes same sex partners. Such leave is subject to a maximum of three days in any one year or five days in any three year period and is paid for by the employer. Carer s Leave Employees are entitled to leave from their job for a period of 104 weeks in order to care for someone in need of full-time care and attention. An employee on carer s leave may also, on one occasion only, apply to extend their leave for a further 104 weeks where two beneficiaries of care are residing together. In such circumstances, the second period shall commence on the date that the deciding officer grants the extension of leave. Accordingly, such an eligible employee may avail of 208 weeks (104 weeks leave in respect of each beneficiary) carer s leave. Carers are not entitled to be paid by employers while on carer s leave, but will have their jobs kept open for them for the duration of the leave. Employees must have 12 months continuous service with an employer in order to be eligible to apply for carer s leave. An employee may not be dismissed because he / she avails of carer s leave. Carer s leave may be taken in a block of up to 104 weeks, or in a series of lesser periods not exceeding an aggregate of 104 weeks and subject to a minimum of 13 weeks. The employer may refuse on reasonable grounds to allow an employee take less than 13 weeks carer s leave. A period of carer s leave will be reckonable for the purposes of all employment rights other than remuneration, superannuation benefits, annual leave (after the first 13 weeks carer s leave) and public holidays (occurring after an employee s first 13 weeks carer s leave). Agency workers Employers establishing themselves in Ireland should note that the use of agency workers does not relieve them of all obligations, which employers would normally have towards employees. This is particularly the case where the agency worker is paid directly by the employer. Even if this is not the case, certain employment rights apply, such as those on unfair dismissals, working time and maternity leave. For example, Section 13 of the UDA provides that where an individual agrees with an employment agency (within the meaning of the Employment Agency Act 1971) to provide services for a third party, that individual would be deemed to be an employee of the third party (ie, the hiring company) for the purpose of the UDA. The Agency Workers Directive, was implemented in Ireland by the Protection of Employees (Temporary Agency Work) Act 2012, which gives agency workers the right to equal treatment in respect of certain core terms and conditions of employment (specifically pay, working time, rest periods, rest breaks, night work, annual leave and public holidays) compared to workers employed directly by the undertaking to which they are providing their services. This is part of an EU-wide initiative to protect atypical employees, in similar fashion to the legislation on part-time and fixed term workers, though it does not provide the same level of protection. Pay is defined as basic pay and pay in respect of shift work, piece work, overtime, unsocial hours and Sunday work. It expressly excludes sick pay, payments under a pension scheme or other occupational schemes.
12 1 Rights Arising at Commencement and During the Course of Employment 11 Employment Permits Any EEA national may work in Ireland without the need to first obtain the approval of the Department of Jobs, Enterprise and Innovation ( the Department ). In respect of non-eea nationals, there are various means by which the individual may lawfully work in Ireland. The four main categories of employment permit are: Green Card Permit; Work Permit; Intra-Company Transfer Permit; and Spousal and Dependant Work Permit. An employment permit will not, generally, be issued where a consequence of granting the permit would be that more than 50% of the employees in a company would be non-eea nationals. Green Card Permit Scheme The Green Card Permit Scheme is available for occupations with annual salaries of 60,000 and above, and for a specified list of occupations with salaries between 30,000 and 59,999, where there is a designated skills shortage. This list of occupations is reviewed on a regular basis. The current list includes occupations where skill shortages are being experienced, such as in the Health Care, and Information and Communications Technology sectors. There is no labour market needs test required for Green Card Permit applications. Green Card Permits are granted initially for a period of two years. There is now no formal renewal application process to the Department. However, some formalities are still required. Those who are granted Green Card Permits are permitted to bring their spouses and families to join them immediately. Work Permits Work Permit applications are made to the Department. Work Permits are issued where there is recognised a labour shortage, and where the salary is above 30,000. Only in exceptional circumstances, a Work Permit may be granted for occupations with salaries below 30,000. Work Permits are granted for a period of two years, and then for a further period of up to three years. Unlike the Green Card Permit Scheme, a labour market needs test must be undertaken for this category of employment permit in order to establish that the vacancies which are the subject of Work Permit applications cannot be filled by an Irish / EEA national. As part of this process, the employer must list the vacancy with Ireland s national employment agency, SOLAS, giving full details of the position available for at least eight weeks prior to submitting the work permit application and in local / national newspapers for six days. The employer must notify SOLAS, upon listing the vacancy, of its intention to apply for a work permit in the event that the position is not filled. Once the vacancy has been posted for the requisite time and assuming that it remains unfilled, SOLAS will provide the relevant documentation to the employer to enable it to apply for a Work Permit. The processing time is normally approximately six to eight weeks. Details of the procedure and forms to be used are posted on the Department s website at It should also be noted that certain sectors are deemed ineligible occupational sectors and that work permits will not issue in respect of positions in those sectors. A list of such sectors is published by SOLAS and the Department on a regular basis. Intra-Company Transfer Permit Scheme The Intra-Company Transfer Permit Scheme allows multi-national companies to transfer certain categories of staff between related companies in different countries, or to transfer them to Ireland on a temporary basis for training purposes. This type of permit is only available for those with annual salaries above 40,000 (or 30,000 for trainees) and who can show that they fit into one of the following three categories: trans-national senior management; key personnel; or trainees. The applicant must also have been employed by the sending company for at least six months. As with the Green Card Permit Scheme, no labour market needs test is required in respect of Intra-Company Transfer Permit applications. These permits are issued for a period of two years initially, and may be extended for up to a further three years.
13 1 Rights Arising at Commencement and During the Course of Employment 12 Atypical Working Scheme Ireland is unique and innovative among EU Member States in piloting a scheme that allows for short-term employment. The Atypical Working Scheme, which commenced in September 2013, applies to non-eea nationals who, in certain circumstances, are required by an organisation based in the State to undertake short-term contract work (up to 90 days) where a skill shortage has been identified; to provide a specialised or high skill to an industry, business or academic institution; to facilitate trial employment in respect of an occupation on the Highly Skilled Occupations List; and to facilitate paid internships in respect of non-eea full-time students studying outside the State (excluding medical internships). Permit applications under the scheme are made to the Irish Naturalisation and Immigration Service rather than the Department which processes the standard employment permits outlined above. There is currently no indication as to how long the scheme will run or whether it will be an indefinite programme. Legislation The Employment Permits Acts 2003 and 2006 govern the grant of employment permits in respect of non-nationals and related matters and provide for fines of up to 250,000 or ten years imprisonment for employers who employ non-eea nationals without employment permits Health and safety Under the Safety, Health and Welfare at Work Act 2005 employers have a general duty to provide for the safety, health and welfare of their employees. This includes the obligation to provide: a workplace that is safe, so far as reasonably practicable; safe means of access to and from the work place; safe plant and machinery; systems of work that are planned, organised, performed and maintained in a safe manner; information, instruction, training and supervision as is necessary to ensure safety and health at work; suitable protective clothing or equipment, where it is not reasonably practicable for an employer to eliminate hazards; adequate plans to be followed in an emergency or serious and imminent danger; facilities for the welfare of employees at work; and a competent person charged with the responsibility of ensuring the safety and health of employees. Employers must prepare what is known as a safety statement. This is a general report by the employer setting out how it intends to secure the health, safety and welfare of its employees in its own particular work place and is based on the hazards identified in a risk assessment carried out by the employer. The information which must be included in the safety statement includes the arrangements made regarding the appointment of safety representatives and consultation with, and participation by, employees and safety representatives and the names of the persons charged with maintaining safety, health and welfare at work. Employers must also consult with employees on health, safety and welfare issues, and the employees may select a safety representative. An employer also has a general common law duty to an employee to take reasonable care for his or her safety. In addition, the Safety, Health and Welfare at Work (General Application) Regulations 2007 apply to all workplaces, placing obligations on all employees, employers and visitors in the workplace. The Regulations cover various aspects of the workplace, including the use of electricity and workplace equipment, personal protection and lifting equipment, and working at heights, as well as incorporation of regulations on noise and vibrations. Health and safety compliance is regulated by the Health and Safety Authority, which performs a broadly similar statutory function to the US Occupational Safety and Health Administration ( OSHA ) or the UK Health and Safety Executive. Sick pay An employer is not obliged to provide sick pay, though in certain circumstances a right to sick pay may be implied even where not expressly provided for in the contract of employment. If a sick-pay scheme is in place, all employees, including fixed-term and part-time workers, must be given details of the scheme. Employees have rights under social welfare legislation to occupational sickness benefit from the State. Most large international employers operating in Ireland would pay some degree of sick pay, which can range from one week up to six months at mid to senior level in some cases.
14 2 Rights Arising on Termination of Employment
15 2 Rights Arising on Termination of Employment 14 Notice Where either an employee or an employer wishes to end a contract of employment, minimum periods of notice apply where there has been continuous service of at least 13 weeks. Notice periods to be given by an employer depend on the employee s length of service, varying from one weeks notice, where an employee has been employed for up to two years, to eight weeks notice, where an employee has been employed for 15 years and upwards. Employees, on the other hand, are only obliged to give one week s notice, irrespective of their length of service. These are of course only the minimum periods. A contract of employment may specify a longer notice period on either side. An employee may waive his or her right to notice and accept payment in lieu of notice. If there is no provision in an employment contract to make payment in lieu of notice, the employee is entitled to work out his or her notice period. Redundancy An employee is entitled to redundancy payments where he or she has worked continuously for two years or more for an employer and is either dismissed by reason of redundancy or in specified circumstances, is laid off or kept on short time. An employer may only make employees redundant in the following circumstances: closure of the employer s business in the location where the employee worked; disappearance of the employee s specific job; reduction in workforce overall; replacement of the employee where the employee is not sufficiently qualified or trained to carry out work in a different manner to the manner in which it was carried out prior to the dismissal; and replacement of the employee by someone who can do other work for which the employee is not sufficiently qualified or trained. There are certain formalities relating to redundancy. In particular, two weeks notice must be given to the employee. The statutory redundancy amount is currently two weeks pay for each year of service, and in addition, one single week s pay. A week s pay is currently subject to a ceiling of 600 a week. In Ireland, it is reasonably commonplace for employers to pay employees an ex-gratia payment, in addition to the statutory redundancy lump sum payment, upon termination of employment by reason of redundancy however, this is in exchange for the employees signing a compromise agreement. Where an employer effects collective redundancies, the employer must, with a view to reaching agreement, initiate consultations with employees representatives in relation to matters such as the possibility of avoiding or reducing the proposed redundancies and the basis on which it will be decided which particular employees will be made redundant. The definition of employee representatives includes any employee(s) nominated by the workforce to negotiate with the employer. The Minister for Jobs, Enterprise and Innovation must also be notified of the proposals at least 30 days in advance of the first notice of redundancy being given. Dismissal The key difference for US employers operating in Ireland on dismissal is the fact that termination at will is not permitted, and generally the employer must be able to establish a fair reason and also show that it followed a fair process in order to legitimately defend a dismissal.
16 2 Rights Arising on Termination of Employment 15 Where an employee has been dismissed without good cause, or if the employer does not behave in a fair and reasonable manner in dismissing him or her, an employee will be entitled to pursue a claim for unfair dismissal. In such circumstances, he or she has a right to claim compensation, reinstatement or re-engagement. Dismissal for cause and / or without cause, as commonly provided for in US agreements, does not therefore arise, as the employer must always have a good cause, plus follow a fair process. The UDA applies to those employees who have more than one year s continuous service with the employer. An employee is covered by the legislation whether the employer terminated the employment or whether the employee was constructively dismissed ie, the employer s behaviour was such that the employee was forced to leave. Material variation of an employee s contract of employment without his or her consent may also constitute constructive dismissal, similar to the US claim of constructive discharge. Reinstatement means treating the employee as if no dismissal has taken place, including compensation for lost benefits. Re-engagement means a reemployment of the employee although not necessarily in the same position and without compensation. Compensation is limited to an amount not exceeding 104 weeks gross remuneration. Justifying Dismissal A dismissal will automatically be unfair if it is for any of the following reasons: membership of a trade union; religious or political opinions; race or colour; involvement in legal proceedings against the employer; pregnancy, attendance at ante-natal classes, giving birth, breastfeeding or any matters connected therewith; sexual orientation; age; unfair selection for redundancy; membership of the Traveller Community; exercising or proposing to exercise rights to maternity, adoptive, force majeure, carer s or parental leave; and exercising or proposing to exercise rights in relation to the minimum wage. In other circumstances the employer can justify a dismissal either by showing that the dismissal was because of the capability, competence or qualifications of the employee, the conduct of the employee, redundancy, the employment being prohibited by statute, or because there were other substantial grounds justifying the dismissal, subject to the dismissal having been effected in a fair and reasonable manner.
17 2 Rights Arising on Termination of Employment 16 An employer must follow fair procedures when dismissing an employee ie, warnings must be given, the employee must be heard, and a fair and proper investigation into the circumstances leading to the dismissal must be carried out. It is recommended that employers follow the Code of Practice on Discipline and Grievance issued by the Labour Relations Commission, which sets out general principles to be adhered to in grievance or disciplinary matters. Enforcement If an employee claims unfair dismissal he or she must initiate proceedings within six months of the dismissal before a Rights Commissioner or the Employment Appeals Tribunal. Alternatively an employee may institute an action at common law and seek damages for wrongful dismissal. An employee may choose whether he or she wants to proceed by way of unfair dismissal or wrongful dismissal. An employee may also apply to the court for an injunction to prevent dismissal in an appropriate case. An injunction may be granted where the employer failed to comply with an agreed disciplinary procedure or failed to follow fair procedures, where damages would not be an adequate remedy and the balance of convenience favours the granting of an injunction. Competition law / restraint of trade Ireland has had a comprehensive domestic system of competition law, which augments existing EU competition law. The Competition Act 2002 prohibits agreements between undertakings which prevent, restrict or distort competition. Since employees normally act on behalf of an undertaking and are not undertakings themselves, the Competition Authority (which enforces competition law in Ireland) considers that employment agreements are not agreements between undertakings and are not covered by the Act. However, once an employee leaves an employer and sets up his or her own business, he or she may then be regarded as an undertaking. This means the previous employment agreement or a severance agreement is subject to the Act and any provisions concerning non-compete covenants could be prohibited. The Competition Authority has issued guidelines as to what types of non-compete provisions will be acceptable. They must be reasonable in subject matter, geographical scope and duration. When drafting non-compete covenants for insertion in employment agreements, Irish common law should also be borne in mind which provides that such covenants are void unless the employer can show he or she has a legitimate interest to protect, that the covenant is reasonable and not contrary to the public interest. As such, US-style global covenants imposing a two-year restriction are unlikely to be enforceable in almost all cases. Template restrictions, often choosing Illinois or other US states as the governing law, should also be avoided, as they can create significant practical difficulties in enforcement. International employers operating in Ireland will therefore typically tailor their covenants to match the individual employee, his or her relevant territory and area of activity, and usually do not go beyond six months, or in very sensitive or senior roles, 12 months. An employer may also insert what is known as a garden leave clause into employment contracts. This means that where an employee has given notice and his or her notice period has not yet expired, the employer can insist on the employee remaining at home on paid leave while his or her notice period runs its course. Thus, where the employee is resigning in order to join a competitor, or to set up a competing business, it ensures that the restrictions in his or her contract ie, concerning confidential information, fidelity etc, remain in place and are unaffected by competition rules, as the employee is still in employment. It also prevents the employee from benefiting from his absence from the workplace while working out his period of notice.
18 3 Collective Rights
19 3 Collective Rights 18 Trade union recognition Unlike North America, and almost all other parts of Europe, employers cannot be required under statute to recognise a trade union under Irish law, unless taking over a business that already recognises a trade union. While an employee is entitled to join a trade union, the employer does not face a corresponding obligation to recognise or to negotiate with any such trade union in relation to the employees terms and conditions of employment. Trade union membership amongst the international employer sector in Ireland is particularly low, particularly in the ICT and pharma sectors, so these issues are unlikely to arise for most foreign employers. Employers do need to take care, however, not to unintentionally recognise a trade union or create collective bargaining arrangements by negotiating with a trade union in relation to employees terms and conditions. Under the Industrial Relations Acts 2001 (as amended) the Labour Court can in certain cases negotiate on behalf of an employer that refuses to recognise or engage with a trade union, and bind the employer to the new terms. In effect, this could potentially have the same impact as mandatory collective bargaining. However, the application of this legislation in practice is extremely narrow and is rarely successfully implemented by employees or trade unions. More generally, the industrial relations environment is regulated by the Industrial Relations Acts However, the system is predominantly a voluntarist system in which management and trade unions must both agree to engage. Where disputes arise, they can be referred to the Irish industrial relations dispute resolution framework, which is mainly the Labour Relations Commission and at a higher level, the Labour Court. Except where matters are pursued under specific statutory claims, both bodies are in essence dispute resolution bodies, and as such the Labour Court is not a strict legal court in the normal sense. In many cases, its conclusions will be issued as recommendations only and will not be binding on the parties. Works councils Works councils are not a significant feature of the Irish industrial relations landscape, unlike other EU countries such as France and Germany where they can play a significant part in day to day operational management and decision making. While Irish law does include specific provision for the establishment of both European and local level works councils, in practice, they are extremely rare. Under the Transnational Information and Consultation Act 1996, an employer can be required to establish a European works council if it is a community scale undertaking or group (as defined) with 150 employees or more in two or more EU member states. The fact that the headquarters or parent entity may be US based will not put the employer beyond the scope of the legislation. Similarly, under the Employees (Provision of Information and Consultation) Act 2006, an employer can be required to establish a local works council, where the employer has 50 or more employees. In both cases, the general rule is that the legislation will only be triggered on a request made by the required number of employees.
21 20 The law stated in this guide is as of 1 May It is for the general information purposes only.
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