3.2 Employment Law

08 May 2009

Please note: This resource provides general information on Irish employment Law and good practice. This information is provided for information purposes only which may not address the particular circumstances of your organisation. The content in this resource is NOT a legal interpretation of any matter and should not be seen as such. For professional or legal advice you should consult a suitably qualified person.

Adoptive Leave - Adoptive Leave Acts, 1995 and 2005

Covers:

All adopting mothers
All sole male adopters

Employees are entitled to:

24 consecutive weeks adoptive leave plus the option to avail of 16 weeks additional adoptive leave
Paid time off to attend preparation classes and pre-adoption classes and meetings within the State
Postpone adoptive leave/additional adoptive leave in the event of the hospitalisation of the child, subject to employer's agreement;
Terminate unpaid additional adoptive leave in the event of the employee becoming ill, subject to employers' agreement.
(in cases of foreign adoption) take some or all of the additional adoptive leave prior to the day of placement
Accrue annual leave and public holidays occurring during adoptive leave and additional adoptive leave

Notification procedures

Employees must give four weeks written notice of:

Intention to take adoptive leave (in conjunction with evidence of placement)
Intention to take additional adoptive leave
Intention to return to work.

Annual Leave - Organisation of Working Time Act, 1997

The Act entitles all employees to annual leave and public holidays.

Employees' annual leave is calculated by one of the following methods:*

Four working weeks, where an employee works more than 1,365 hours in the leave year OR Where the employee has worked less than 1,365 hours:

1/3 of a working week where the employee works at least 117 hours in a calendar month; or
8% of the hours worked in the leave year (maximum of four weeks per annum).

*The employer must choose the calculation that gives the greater entitlement.

Hours worked means hours physically worked, including overtime hours. Periods that should be included are: maternity leave, additional maternity leave, adoptive leave, additional adoptive leave, health and safety leave, parental leave, carer's leave (first 13 weeks) and hours spent on annual leave itself. Pay entitlement during annual leave includes any regular bonus or allowance, but excludes overtime pay.

Points to note

It is illegal for an employer to pay in lieu of the statutory annual leave unless the employment relationship is terminated.
If an employee on annual leave is medically certified as ill, the period of annual leave can be taken again.

Public Holidays

Eligibility:

All full-time employees
All part-time employees who have worked at least 40 hours in the five weeks ending on the day before the public holiday

Entitlement

The employer may decide upon:

A paid day off on the day; or
A paid day off within a month; or
An extra day's annual leave; or
An additional day's pay.

Public Holidays

New Year's Day
St. Patrick's Day
Easter Monday
First Monday in May
First Monday in June
First Monday in August
Last Monday in October
Christmas day
St. Stephen's day

(Good Friday and Christmas Eve are not public holidays)

Pay for a Public Holiday

Where employees are not normally rostered to work on a day on which a public holiday falls, they are entitled to one fifth of the sum paid in respect of the normal weekly hours last worked before the public holiday.
Where employees work, or are normally rostered to work, during any part of a public holiday, the rate of pay is equal to the sum paid in respect of the normal daily hours last worked by them before the public holiday.

Carer's Leave - Carer's Leave Act, 2001

Employees are entitled to:

Accrue annual leave and public holidays occurring during the first 13 weeks of carer's leave.
104 weeks leave to provide full-time care and attention to a relevant person*

Points to Note

Applications are made to the Department of Social and Family Affairs to decide whether the person for whom they propose to take the leave is a 'relevant person'.
Employees must have one year's continuous service.
Employees should give six weeks notice of intention to take carer's leave.
Employees may be entitled to carer's benefit depending on PRSI contributions.
An employer may refuse, on reasonable grounds, to permit an employee from taking a period shorter than 13 weeks. The reasons must be specified in writing.

* A relevant person is a care recipient who needs continual supervision and frequent assistance throughout the day in connection with normal bodily functions or in order to avoid danger to themselves.

Contract of Employment - Terms of Employment (Information) Acts, 1994 and 2001 / Unfair Dismissals Acts, 1997 to 2007

Employers must provide new employees with a written statement (contract) of their terms and conditions of employment within two months of starting employment.

The Statement must include the following details:

The full names of the employer and the employee
Full address of the employer
The place of work, or where there is no fixed place of work, a statement indicating that the employee is required to work at various locations
Job title or nature of the work
Date of commencement of employment
The expected duration of employment, either fixed or permanent
The rate of remuneration or method of calculating remuneration
Whether payment is paid weekly, monthly or otherwise
Annual Leave and other paid leave entitlements
Hours of work (including overtime)
Details of rest periods and breaks
Sick leave and pension arrangements, where applicable
A reference to any collective agreements
Notice requirements

This written statement should be signed and dated by both parties.

Other terms, which may be included in a contract of employment, are:

Confidentiality clause
Equal opportunities statement
A probationary period
Provision for lay-off/short Time/redundancy
Deductions from pay
A flexibility/interchangeability clause
Disciplinary and grievance policies
Non-compete clause
A right to search
Retirement age
Provision to request the employee to attend the company doctor
Company rules and regulations

Discipline and Dismissal - Unfair Dismissals Acts 1977 to 2007

This information below is for guidance only and in case of potential dismissal or discipline you should take appropriate advice.

The Unfair Dismissals Acts protect employees from unfair dismissal once they:

Are aged over 16 years.
Have at least one year's continuous service with the employer (Except where dismissal is related to trade union membership/activity or for exercising an employee's rights under certain other employment legislation, in which cases there is no service threshold)

A dismissal is deemed not unfair if it arises principally from:

The capability, competence or qualifications of the employee
The conduct of the employee
Redundancy, provided fair selection procedures have been followed
Other substantial reasons.

Any claim of unfair dismissal must be made within six months of the date of dismissal (or up to a maximum of 12 months in exceptional circumstances). Dismissals can be deemed to be unfair based on either substantive or procedural grounds.

The Employment Appeals Tribunal hears cases, and in an unfair dismissal can award:

Reinstatement
Re-engagement
Compensation for loss of earnings

Principles of Natural Justice

When the disciplining or dismissing of an employee is being considered, the principles of natural justice must always apply. This requires the employer to:

Inform the employee of the case being made against him/her
Give the employee the right to reply to the allegations
Listen to all arguments or submissions made in relation to the matters at issue
Investigate as necessary and give all information due consideration;
Allow the employee the right to representation;
Forewarn the employee concerned that the procedure is being operated in the context of the possibility of disciplinary action or dismissal
Give the right of appeal at every stage.

Disciplinary Procedure

Every employee should be given a copy of the disciplinary procedure within 28 days of starting employment. Basic details given below are for illustrative purposes only and should not be regarded as comprehensive.

Prior to any stage in the disciplinary procedure, an employee should be forewarned if their performance/attendance is not up to the organisations standard. An employee's natural rights have to be respected at all stages and all warnings should be recorded on the employee's personnel record for the defined duration.

Pre-Disciplinary Warning / Counseling
The employee is initially given a word of warning and counseling by his or her immediate supervisor

Formal Verbal Warning: In the event of a further breach of conduct, poor attendance or lapse in performance, the employee is given a formal verbal warning.
First Written Warning: In the event of a further breach, the employee is issued with a written warning.
Final Written Warning/Suspension: In the event of yet a further breach, the employee is given a final written warning. At this stage the employee may also be suspended.
Dismissal: If, following a period of suspension without pay or a final written warning, an employee is guilty of further breaches, the employee is dismissed.

In cases of misconduct or gross misconduct (as defined in the company policy), the company may summarily dismiss an employee without recourse to every stage of the procedure. In cases where the company considers that summary dismissal is warranted it may suspend an employee with pay to facilitate an investigation of the case. The principles of natural justice require that fair procedures are applied in all such circumstances.

Equality In The Workplace - Employment Equality Acts, 1998 to 2007

It is illegal to discriminate, directly or indirectly, on pay or non pay issues on any of the following grounds:

Gender
Marital Status
Age
Disability
Race
Membership of the traveler community
Family status
Sexual orientation
Religion

Discrimination must not take place on any of the above grounds in relation to:

Access to employment
Recruitment
Training or work experience
Promotion
Conditions of Employment
Classification of Posts

Points to Note

It will be a defence for employers to show that they took such steps as were reasonably practicable, to prevent harassment from taking place.
An employer is required to take 'appropriate measures' to facilitate a person with a disability, provided this does not mpose a 'disproportionate burden' on the organisation.
It is illegal for fellow employees, the employer, customers or other business contacts to discriminate against or harass/sexually harass any individual in the workplace or at work related social events because of one of the nine grounds.

Fixed-Term Employees - The Protection of Employees (Fixed-Term Work) Act, 2003/Unfair Dismissals Acts, 1977 to 2007

The Protection of Employees (Fixed-Term Work) Act, 2003, covers all employees who have a contract of employment, where the end of the contract of employment is determined by an objective condition such as the:

Arrival of a specific date; or
Completion of a specific task; or
Occurrence of a specific event.

A fixed-term employee cannot, in respect of remuneration and conditions of employment, be treated in a less favorable manner than a comparable full-time employee, unless such treatment can be justified on objective grounds.

Successive Fixed-Term Contracts

Once a fixed-term employee has completed the third year of continuous employment, the fixed-term contract may only be renewed on one further occasion for a maximum of one year.
Employees engaged on fixed-term contracts after 14 July 2003: Once a fixed-term employee has been engaged on two or more fixed-term contracts, the aggregate duration may not exceed four years.
When either limit has been reached, the next contract must be of indefinite duration.

An employee may be excluded from taking a claim for unfair dismissal resulting from the expiry of the contract, provided that the contract:

Is in writing
Contains a clause specifically excluding the application of the Unfair Dismissal Acts, 1977 to 2007*
Is signed by both parties; and
States the commencement and end date or the specific purpose.

* This exclusion cannot be relied upon on, where an employee has over one years service and is on a second or subsequent contract.

Points to Note

If an employer proposes to renew a fixed-term contract, the employee must be informed in writing of the objective grounds justifying the renewal and explaining why a contract of indefinite duration is not being offered. This must be done by the date of the renewal.
An employer must inform fixed-term employees of any relevant employment vacancies.
Access to appropriate training opportunities must also be facilitated.

Maternity Leave - Maternity Protection Acts, 1994 and 2004

Covers:

All pregnant employees
Employees who have recently given birth (within 14 weeks)
Employees who are breastfeeding (not more than 26 weeks from the date of birth) and who have informed their employer of their condition.

Employees are entitled to:

26 consecutive week's maternity leave plus the option to avail of 16 weeks additional maternity leave;
Accrue annual leave and public holidays occurring during maternity leave and additional maternity leave;
Time off without loss of pay to attend related medical, ante-natal and post-natal appointments and time off (both parents) to attend certain ante-natal classes;
Postpone maternity leave*/additional maternity leave in the event of the hospitalisation of the child, subject to employer's agreement;
Terminate additional maternity leave in the event of the employee becoming ill, subject to employer's agreement;
At the discretion of the employer, either breastfeeding breaks in the workplace, or a reduction to working hours without loss of pay;**
Avail of full maternity leave and additional maternity leave in all cases of confinement after the 24th week of pregnancy, even if the pregnancy does not result in a live birth.

* Employee must have taken at least 14 weeks maternity leave before postponement.
** For up to 26 weeks after confinement.

During any period of protective leave, an employee's statutory and contractual rights are protected, except the right to remuneration. The employer is not obliged to pay the employee during maternity leave or additional leave. An employee may be entitled to a social welfare benefit during maternity leave depending on PRSI contributions. No social welfare benefit is payable during the 16 weeks additional maternity leave period.

The employee must take at least two weeks maternity leave before the date of confinement, and at least four weeks leave after the birth.

Notification Procedures

Employees must give four weeks written notice of:

Intention to take maternity leave (in conjunction with a medical certificate);
Intention to take additional maternity leave;
Intention to return to work.

Health and Safety Regulations

The employer is required to carry out a risk assessment identifying risks associated with employees who are covered by the legislation. If a risk is identified, the employer must:

Remove the risk; or where this is not feasible
Temporarily adjust the employee's working conditions or working hours; or where this is not feasible
Transfer the employee to suitable alternative work; or where this is not feasible
Grant health and safety leave - the first 21 calendar days of health and safety leave are paid by the employer (an employee may be entitled to health and safety benefit for the remainder of the leave depending on PRSI contributions).

Under maternity legislation, a night worker is defined as an employee who works three hours or 25% of her monthly working time between 11pm and 6am.

Force Majeure Leave - Parental Leave Acts, 1998 and 2006

Employees are entitled to:

Leave up to a maximum of three paid days in any 12 consecutive months, or five paid days in any 36 consecutive months.
Leave with pay for urgent family reasons owing to the illness/injury of an immediate family member, where the presence of the employee with the ill/injured person is indispensable;

Minimum Notice - Minimum Notice and Terms of Employment Acts, 1973 to 2001

Notice to employees

The minimum period of notice to which an employee is entitled, will vary according to his/her length of service.

Length of Service Minimum Notice Entitlement

13 weeks to 2 years 1 week
2 years to 5 years 2 weeks
5 years to 10 years 4 weeks
10 years to 15 years 6 weeks
15 years + 8 weeks

Notice to Employer

Unless the employment contract has stipulated otherwise, the employer is entitled to one week's notice from the employee.

Contractual Notice

Where a contract of employment provides for a longer period of notice than provided for under the above Acts, the parties are bound by that longer period of notice.

Both parties may exercise their right to waive the notice period or to accept payment in lieu.

Employing Non-Irish Nationals - Employment Permits Acts, 2003 and 2006

An employer wishing to employ a non-EEA* national may have to seek an employment permit in respect of that individual. The application can be made by either the employer or the employee. The type of permit applied for will depend on salary and occupation.

Salary	Employment Permit	Occupations/Eligibility
Over €60,000	Green card permit	Normally granted unless contrary to public interest.
€30,000-59,999	Green card permit	For restricted number of strategically important occupations, e.g. ICT, healthcare, science and Finance (not exhaustive list).
€30,000-59,999	Work Permit	For occupations not listed in the current skill shortage range, i.e. where green card permit not available.
Less than €30,000	Work Permit	Very restricted eligibility.
At least €40,000	Intra-company transfer	Key personnel transferring from related company outside the EEA.
Any level of salary	Spousal/ Dependant .	Permit All occupations, all levels of salary (no application fee)

The Employment Permits Acts, 2003 and 2006 also introduced a Graduate Scheme whereby non-EEA students who have acquired a primary, masters or doctorate degree from an Irish third level institute can apply to the Garda National Immigration Bureau (GNIB) to remain in Ireland for six months after the receipt of their examination results. There may be certain work restrictions in place during this time.

A non-Irish national may have permission to work without the need for a work permit in a number of circumstances. This list is not exhaustive:

EEA citizens can work freely in the state without a permit*
Any non-EEA spouse or dependant children (under the age of 21) of an E.U. national must register with the GNIB before they can work. Once registered there is no restriction on the type of work that can be performed.
Persons who have been granted 'refugee status' by the Minister for Justice, Equality and Law Reform.
Persons with permission to remain as parents of an Irish born child.
Persons who have been granted a working visa/authorisation prior to the Employment Permits Acts, 2003 and 2006.

*EEA is the European Economic Area which is made up of the European Union (E.U.) together with Norway, Iceland and Liechtenstein. Interim rules apply to Bulgarian and Romanian Nationals who may stiff need work permits.

Parental Leave - Parental Leave Acts, 1998 and 2006

Employees are entitled to:

14 weeks unpaid leave, for each child, with a maximum of 14 weeks parental leave to be taken in any one year (except in cases of multiple births)
Take parental leave in two separate blocks of a minimum of six weeks each. The leave may be broken up over a period of time, into individual days, weeks or hours by agreement with the employer
Accrue annual leave and public holidays occurring during parental leave.

Points to Note

The leave must be taken before the child reaches eight years of age (16 years of age for a child with a disability).
Employees must have one year's continuous service for the full entitlement.
Employees must give six weeks notice of intention to take the leave.
A confirmation document must be prepared and signed no later than four weeks before the leave is due to begin.
The leave may be postponed by the employer for up to six months for business operational reasons, or by reason of seasonal variation.

Part Time Employees - The Protection of Employees (Part-Time Work) Act, 2001

This legislation covers all part-time employees. A part-time employee is an employee whose normal hours of work are less than those of a comparable full-time employee.

Non-Discrimination

A part-time employee cannot, in respect of remuneration and conditions of employment (including both statutory and contractual benefits), be treated in a less favorable manner than a comparable full-time employee, unless such treatment can be justified on objective grounds.
Conditions of employment are applied on a pro rata basis to part-time employees vis-à-vis comparable full-time employees.

Exclusion of Casual Part-Time Employees

Less favorable treatment of casual part-time employees on a specific condition of employment that can be justified on objective grounds is permissible.

A part-time employee shall be considered to be a casual employee if at that time:

The employee has been working for less than 13 weeks; and
The period of service and any previous period of service could not be reasonably considered to constitute regular or seasonal employment; or
The employee fulfils conditions for casual employment specified in a collective agreement that has been approved by the Labour Court.

Redundancy - Redundancy Payments Acts, 1967 to 2007/Protection of Employment Acts, 1977 to 2007

An employer must pay employees, whose positions are made redundant, a statutory lump sum, if they satisfy the following conditions:

Are employed under a contract of service or apprenticeship
Have at least 14 weeks of service
Are over 16 years of age.

Any excess days over the complete years of service are calculated as a proportion of a total year. In calculating a week's pay, an upper limit (currently €600 per week) is placed on weekly earnings for statutory purposes.

Organisations are required to process all redundancies on one form, the RP50. The redundancy form is available from the Department of Enterprise, Trade and Employment.

Collective Redundancy

Under the Protection of Employment Acts, 1977 to 2007, employers are required to notify the Minister for Enterprise, Trade and Employment of a collective redundancy and to inform and consult with employee representatives a full 30 days before the first notice of redundancy is given.

A collective redundancy situation occurs where in any 30 day period the number of dismissals due to redundancy is at least:

5 employees where 21-49 are employed
10 employees where 50-99 are employed
10% of the employees where 100-299 are employed
30 employees where 300 or more are employed.

Employers should always seek advice when considering and implementing redundancies

Working Time - Organisation of Working Time Act, 1997

Definition of working time

Working time includes any time that the employee is at his/her place of work or at his/her employer's disposal, and carrying on or performing the activities of his/her work.

Rest Breaks	Hours Worked
15 minutes*	4-5 hours
30 minutes*	6 hours
11 consecutive hours	Within every 24 hours
Weekly rest
24 consecutive hours**	Within every 7 days

* Breaks must not be given at the end of the working day. The 15 minute break may form part of the 30 minute break,
** The 24 hour weekly rest period should be preceded by the 11 hour daily break (i.e., 35 hours in total),

Maximum Weekly Working Hours

The law limits the maximum average working week to 48 hours. The 48 hours may be averaged as follow:

2 months - night workers
4 months - basic reference period
6 months - for employees in certain activities, as set down in the Act, whose work is subject to seasonality, foreseeable surges in activity or in ensuring continuity of service or production, etc;
Up to 12 months - by collective agreement, approved by the Labour Court.

Working time is net working hours i.e. exclusive of breaks, on call or standby time, statutory leave or sick leave.

Sunday Work

Employees who are required to work Sundays are entitled to be compensated in terms of payment or paid time off.

Night Working

A night worker is an employee who normally works at least three hours between midnight and 7am, and the hours worked exceed 50% of the total number of hours worked per annum.

Exemptions

Certain exemptions are available under the terms of the Act for certain sectors of activity. These exemptions do not exclude such activities from the provision of the legislation, but merely allow employers to vary the manner in which they apply the provisions for compensatory rest.

Young Persons - Protection of Employees (young Persons) Act, 1996

The Act applies to employees under the age of 18.

Hours of work and rest periods

Age	14yrs old	15 yrs old	16&17 yrs old
Maximum working hours
Daily hours	-	-	8 hours
Weekly hours	-	-	40 hours
Term-time	Nil	8 hours	-
Holiday work	35 hours	35 hours	-
Work Experience	40hours	40hours	-

Rest periods

Age	14yrs old	15 yrs old	16&17 yrs old

After 4 hours work	30 mins	30 mins	-
after 4.5 hours work	-	-	30 mins
Daily rest break (consecutive hours)	14 hours	14 hours	12 hours
Weekly rest break	2 days	2 days	2 days
Summer break	21 days	21 days	n/a*

*Normal annual/eave entitlements apply.

Early Morning

Not permissible before 8am before 8am before 6am

Night Work

Not permissible after 8pm after 8pm after 10pm

Points to Note

Before employing a child under 16, the employer must have written permission from a parent or guardian.
An abstract of the Act should be displayed at the place of work where it can be easily read.
An employer must retain a register in relation to the employment of young persons.

This should contain the following:

full name
date of birth
start and finish times
wage rate, per day/week/month total amount of
wages/salary
written permission from parent/guardian.