McDowell Purcell Irish Legislation Quick Reference Guide 2014
CHAMBERS EUROPE 2014 The team is commercial in its views and very practical and clear in its advice. Barry Walsh is a highly respected employment practitioner, focused on advising corporate clients. He is praised as very insightful. CHAMBER EUROPE 2013 With impressive work highlights and excellent client feedback, this remains a goto practice for complex employment claims Barry Walsh is regarded by clients as an excellent, contemplative lawyer who matches up to the best Sinéad Likely is described as ly comprehensive in her advice and never makes impulsive or rash decisions A reputation for exceeding expectations Our team of specialist lawyers advise clients across a wide range of industry sectors, assisting large corporate clients and medium and smaller enterprises. We provide clear and practical advice, addressing both local and international employment issues. We also work closely with senior executives and employers in respect of issues that arise in shareholder/boardroom disputes in private and public companies. In conjunction with our Pensions Law Department, we provide advice to employers in relation to occupational pensions schemes and, in particular, the options available to employers in effecting changes to pension benefi ts.
IRISH EMPLOYMENT LEGISLATION - QUICK REFERENCE GUIDE - OCTOBER 2014 TOPIC LEGISLATION KEY PROVISIONS REDRESS TIME LIMITS Terms of Terms of (Information) Acts 1994-2012 Employers required to provide written statement setting out certain basic terms of employment within two months of commencing employment. Up to 4 weeks remuneration Complaint statute barred if made more than 6 months after termination Minimum Notice Minimum Notice and Terms of Acts 1973-2005 Employees entitled to statutory minimum notice (or pay in lieu) based on continuous service as follows: o 13 weeks - 2 years 1 week o 2-5 years 2 weeks o 5-10 years 4 weeks o 10-15 years 6 weeks o Over 15 years 8 weeks Employee must give employer at least one weeks notice Compensation based on actual loss No time period specified Unfair / Constructive Dismissal Unfair Dismissal Acts 1977-2007 1 years continuous service required (save where dismissal due to whistleblowing, trade union membership or activity, pregnancy or matters connected therewith, exercising rights to adoptive, parental, carer s or force majeure leave, or exercising rights in relation to minimum pay). Caution: Where the dismissal is based on misconduct and fair procedures are not applied, an employee may seek interim relief in the High Court. These applications are much more common in Ireland than in the UK. remuneration for discrimination (based on financial loss and subject to the employee s duty to mitigate loss), reinstatement, or reengagement dismissal to 12 months in Discrimination / Harassment / Equality Equality Acts 1998-2011 No service requirement. Discriminatory grounds: gender; civil status; family status; sexual orientation; religious belief; age; disability; race colour, nationality, ethnic or national origins; membership of the traveller community. Unlike the UK, no requirement for a condition to last or be expected to last 12 months or more. remuneration for discrimination (based on equitable), reengagement, or reinstatement A further 2 years can be awarded for victimisation (very rare) occurrence, or most recent occurrence, of the discrimination or victimisation (can be extended to 12 months for Access to employment cases-cap of 12,698 Gender related claims can be brought to the Circuit Court - no limit on jurisdiction Fixed Term Employees (FTE) Protection of Employees (Fixed-Term Workers) Act 2003 Prohibits employers from treating FTEs less favourably than comparable permanent employee unless treatment justified on objective grounds. Exception in relation to a pension scheme if FTE s normal hours of work less than 20% of normal hours of comparable permanent employee. FTE entitled to permanent contract if employed on 2 or more fixed term contracts exceeding 4 years unless objective justification for renewal. Where contract renewed, must inform FTE in writing, not later than renewal, of objective grounds justifying the renewal and failure to offer permanent contract. Can exclude application of the Unfair Dismissal Acts provided certain conditions are met: the contract is in writing; signed by both parties; and clearly provides that the Unfair Dismissals Acts will not apply to a termination consisting only of the expiry of the term or purpose of contract. May not apply to successive fixed-term contracts. If contract ends and FTE is re-hired within 3 months on further fixed-term contract which is subsequently terminated, continuity of service deemed unbroken and Unfair Dismissals Acts will apply. Prohibits penalisation of FTEs. equitable) May declare claim well founded and confirm FTE s entitled to permanent contract with back pay where applicable Part-Time Employees (PTE) Protection of Employees (Part-Time Work) Act 2001 No service requirement. However, the Acts make a distinction for casual workers. A casual worker is a PTE who works on a casual basis (workers are those with fewer than 13 continuous weeks' service). Act provides that a PTE shall not be treated in a less favourable manner than a full time employee unless treatment can be justified on objective grounds. equitable) This is a quick reference guide only and does not constitute legal advice. As employment law is constantly evolving we advise that specific advice is sought from one of our team when dealing with Irish employment law matters.
PTEs may be treated in a less favourable manner in relation to a pension scheme arrangement if the employee s normal hours of work are less than 20% of the normal hours of work of a comparable full-time employee. No statutory obligation on an employer in Ireland to accede to a request for part time or flexible work. Minimum Wage National Minimum Wage Act 2000 Experienced adult workers: 8.65 Under 18 s: 6.06 Employee must seek written statement of pay from employer before bringing a claim under the Act Certain sectorial wage agreements exist in Ireland. Practitioners should check if any sectorial wage agreement applies Arrears Within 6 months to 12 months) since statement obtained from employer Alternatively, claim can be brought as simple contract debt within 6 years Non-payment of Wages Payment of Wages Act 1991 Prohibits deduction from an employee s wages save in certain circumstances (incl. where written consent is obtained, where deduction is required or authorised by law (e.g. PAYE or PRSI), or where deduction authorised by employee's contract (e.g. pension contributions, or particular till shortages). Wages does not include: expenses, payments by way of a pension, allowance or gratuity in connection with death or retirement or resignation from employment, compensation for loss of office; redundancy payments; benefits in kind. Up to the net amount of the deduction based on 6 months of date of deduction (can be extended to 12 months in Working Time Organisation of Working Time Act 1997 Maximum working week of 48 hours calculated over 4 month period (there are some exceptions to reference period). Employees entitled to: o Daily rest period of 11 consecutive hours per 24 hour period o Weekly rest period of 24 consecutive hours per seven days, following a daily rest period o 15 min break where more than 4½ hours worked o 30 min break where more than 6 hours worked (may include 1 st ) break o Reasonable (unspecified) allowance for working Sundays Night Worker (works at least 3 hrs. between 12am and 7am at least 50% of the year) must not work in excess of an average of 8 hours in a 24 hour period calculated over maximum reference period of 2 months. Certain sectors exempted from rest provisions but in almost all cases an equivalent compensatory rest period must be given. Certain exemptions for split-shift workers. Practitioners need to have regard to a number of regulations made under the Act which may affect clients in certain sectors. Unlike UK, no right to opt out of 48 hour week. equitable) Annual Leave Organisation of Working Time Act 1997 Employees entitled to paid annual leave of the greater of: o 4 working weeks in a leave year where employee works at least 1,365 hours o 1/3 of working week where employee works at least 117 hours o 8% of hours worked in a leave year (subject to a maximum of 4 working weeks) Employers can determine the timing of annual leave but must give one month s notice and have regard for employee s family circumstances and opportunities for rest and recreation. Annual leave must be taken within the leave year or by agreement within six months in the following year. Pay cannot be given in lieu unless employee is leaving his job. If employee falls ill on annual leave and provides a medical certificate for the period of illness, it shall not be counted as annual leave. Employees are not entitled to pay for being ill while on annual leave if the employer does not pay sick leave. equitable) Public Holidays Organisation of Working Time Act 1997 All employees are entitled to public holidays but may at the option of the employer be given either a paid day off on the day, a paid day off within a month, an extra day s annual leave or an additional day s pay. An employee who normally works on a public holiday is entitled to an additional day s pay. Otherwise (for example, a part-time employee), an employee is entitled to 1/5 of a week s pay. Part-time employees only qualify for this benefit if they have worked for at least 40 hours during the 5 weeks preceding the public holiday. 9 public holidays each year: 1 Jan; 17 Mar; Easter Monday; first Monday in May; June and August; last Monday in October; 25 December; 26 December. See annual leave above See annual leave above This is a quick reference guide only and does not constitute legal advice. As employment law is constantly evolving we advise that specific advice is sought from one of our team when dealing with Irish employment law matters.
Parental Leave / Force Majeure Leave Parental Leave Acts 1998-2006 Natural or adoptive parents entitled to 18 weeks unpaid leave. Leave must be taken before child reaches 8 (or 16 for children with a long term illness). Minimum service requirement of one year. However, if the child is near threshold age and the employee has between 3-12 months service, entitlement is on a pro-rata basis. Leave may not be transferred between the parents. Up to 14 weeks may be transferred if parents employed by same employer and employer agrees. Leave may be taken as 1 block or, in separate blocks of a min. of 6 continuous weeks, or more favourable terms with agreement. Gap of at least 10 weeks between two periods of leave. Employer may postpone leave for up to 6 months on certain stated business grounds. Act also provides for force majeure leave that arises when injury or illness of a close relative (as defined) makes the immediate presence of the employee indispensable. Max allowance is 3 days in 1 year or 5 days over 3 consecutive years. Part of a day is counted as a full day. Order that leave is to be given and the way in which it is to be taken; and/or compensation not exceeding 20 weeks pay the occurrence of the dispute (can be extended to 12 months for Maternity Leave Maternity Protection Acts 1994-2006 26 weeks ordinary maternity leave ( OML ) and 16 weeks ordinary additional leave ( AML ). No minimum length of service required. No pay Any dismissal of employee while on maternity leave is void. Provision, subject to the employer's agreement, for the termination of AML in the event of sickness, at which point sickness leave will commence. Provision, subject to the employer's agreement, for the postponement of OML/AML in the event of the hospitalisation of child. Provision for expectant mothers to attend one set of ante-natal classes without loss of pay. Once-off right for fathers to paid time off to attend last 2 ante-natal classes Paid time off to receive antenatal or post-natal care. Right to pay employees for first 3 weeks of health and safety leave. Breastfeeding breaks or a reduction to working hours where no facilities provided. Claims in relation to failure to allow the employee to return to work are brought under the unfair dismissals legislation. See redress and time limits above Claims in relation to discriminatory dismissal are brought under the employment equality legislation. See redress and time limits above Contravention of the Act other than dismissal/discrimi nation: 6 months of the to 12 months in Adoptive Leave Adoptive Leave Act 1995-2006 Adopting mother or sole male adopter who commences adoptive leave after 1 March 2007 entitled to 24 consecutive weeks of unpaid leave and a further 16 weeks additional unpaid leave. Prior to the adoption taking place, employee entitled to paid time off for pre-adoptive meeting and preparatory classes. Adopting father entitled to certain leave in circumstances where the adopting mother has died before or during the period of adoptive leave. Limited time off, without loss of pay, to attend pre-adoption classes and meetings. Claims in relation to failure to allow the employee to return to work are brought under the unfair dismissals legislation. See redress and time limits above Up to 20 weeks remuneration based on equitable Contravention of the Act other than dismissal: 6 months of the Carer s Leave Carer s Leave Act 2001 Unpaid leave of between 13 and 104 weeks to care for persons requiring such for a period. Minimum service requirement 12 months service. Employees on carer s leave may work outside the home in employment or self-employment for an aggregated maximum of 15 hours per week while on carer s leave. Certain conditions for eligibility apply. 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. Order that carer's leave of such length to be taken at such time or times and in such manner as may be so specified; and/or Compensation of up to 26 weeks remuneration the placement, or, if no placement, the date the employee notified the employer of intention to take leave (can be extended to 12 months for Redundancy Redundancy Payments Acts 1967 to 2007 Employees under the age of 66 with more than 104 weeks service who are made redundant have a number of statutory entitlements: o 2 weeks notice in writing of the proposed dismissal (can run alongside contractual notice) o Statutory lump sum redundancy payment of two weeks pay per year of service plus a bonus week. The figure for a weeks pay is subject to a cap of 600. Failure to comply with notice requirement: fine of up to 5,000 Award of statutory payment the dismissal (may be extended to 12 months in This is a quick reference guide only and does not constitute legal advice. As employment law is constantly evolving we advise that specific advice is sought from one of our team when dealing with Irish employment law matters.
Collective Redundancy Protection of Acts 1977 to 2007 Dismissals arising from redundancy where, in any period of 30 consecutive days, the numbers being made redundant are: o at least 5 in an establishment normally employing more than 20 and less than 50 employees; o at least 10 in an establishment normally employing at least 50 but less than 100 employees; o at least 10% of the number of employees in an establishment normally employing at least 100 but less than 300 employees; o at least 30 employees in an establishment normally employing 300 or more employees. Employer is obliged to notify employees and Minister for Jobs, Enterprise and Innovation at least 30 days before the proposed redundancies are due to take place and provide them with certain prescribed information. Obligation to inform and consult with employee representatives at least 30 days prior to the redundancies notices being issued. The relevant period in the UK is 90 days and the number of redundancies that triggers the obligation to consult is 20 or more. Failure to consult: declaration that the employer must consult and/or up to 4 weeks compensation Failure to initiate consultation with employee reps, to supply them or Minister with relevant information, or to notify Minister of proposed redundancies: offence and liable on conviction to a fine of up to 5,000 Employer implements a collective redundancy before expiry of 30 day notice period: guilty of an offence and liable on conviction to a fine not exceeding 250,000 Failure to consult: to 12 months in Exceptional Collective Redundancies (ECR) Protection of (Exceptional Collective Redundancies and Related Matters) Act 2007 ECR means dismissals by reason of collective redundancy shall not be deemed redundancies where the employees are replaced by workers effectively doing the same job on materially inferior terms. Possible ECRs may be referred to a Redundancy Panel. If the Panel believes that the redundancy is an ECR, it will request the Minister to refer the matter to the Labour Court for final determination. Where the Labour Court determines existence of ECR, compensation of between 208-260 weeks pay will be payable to each employee TUPE EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 Basic concept similar to UK. Transferor and transferee must provide specified information to their respective workforce, and consult with representatives of the employees, if there are measures which affect them, not later than 30 days before the transfer occurs and in any event in good time. If employee refuses to transfer, this is a deemed resignation (save where the refusal is due to a substantial deterioration in the working conditions of the employee) and no entitlement to redundancy exists. Unlike the UK, no specific provisions regarding outsourcing or service provision change. There is no automatic transfer - will depend on whether there is transfer of significant tangible or intangible assets or a taking over of a major part of the workforce in terms of numbers and skills. Unlike the UK, EU case law followed very closely. Dismissal/failure to provide same terms and conditions: Up to 2 years remuneration (based on what is just and equitable), reengagement, or reinstatement Failure to inform/consult: up to 4 weeks remuneration to 12 months in Agency Workers The Protection of Employees (Temporary Agency Work) Act 2012 Agency workers are individuals employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the agency. Act does not apply to: (i) self-employed persons; (ii) managed service contracts. Agency workers have the right to the same basic employment and working conditions" (as defined in the Act) as if they had been directly employed by hirer under a contract of employment. The right to equal pay has retrospective effect to 5 December 2011. If agency worker has permanent contract with agency and is paid a certain sum between assignments, equal pay provision does not apply. Workers must have equal access to facilities such as childcare, canteen and car parking and information about permanent opportunities. Depending on the particular, either the employment agency or the hirer can be responsible for a breach of the Act. Hirer to provide all information reasonably required by the employment agency to enable the employment agency to comply with its obligations. Offence for employment agency to charge an individual a fee in respect to the making any arrangement for that individual being employed following the conclusion of an assignment under a contract with that hirer. Offence for anyone to make false statements in relation to an offence being committed under the Act. Prohibits penalisation. equitable), reengagement, or reinstatement This is a quick reference guide only and does not constitute legal advice. As employment law is constantly evolving we advise that specific advice is sought from one of our team when dealing with Irish employment law matters.
Working with you We understand that keeping our clients up to date on new employment law issues is important and we keep them informed through our regular e-zines and e-alerts. Members of our team are also regular speakers at employment law conferences and seminars. We advise on all employment law matters, including: Bullying and Harassment in the Workplace Drafting Contracts and HR Policies and Procedures Grievance matters and Employee Complaints Performance and Absence Management Support in Corporate Transactions, including due diligence Transfer of Undertakings and Outsourcing Workplace Related Stress issues Health and Safety matters Industrial Relations and Trade Union matters Disciplinary matters and Termination of Equality Issues Claims before the Rights Commissioner Service, Appeals Tribunal, Labour Court, Equality Tribunal and the Civil Courts Injunction Applications Breach of Contract claims Mediation and Arbitration of Disputes Restrictive Covenant, Confidentiality and Non- Compete / Non-Solicitation issues related Data Protection and Privacy issues related Corporate Immigration matters Employee Whistleblowing issues Barry Walsh Julie Austin Sinead Likely Mark Kelly Partner bwalsh@mcdowellpurcell.ie +353 1 828 0680 Associate jaustin@mcdowellpurcell.ie +353 1 828 0656 Associate slikely@mcdowellpurcell.ie +353 1 828 0600 Solicitor mkelly@mcdowellpurcell.ie +353 1 828 0678
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