In recent years, employers' and employees' relations are
increasingly governed by laws, most of which come from the EU level.
Human Resource (HR) Management has also undergone significant
changes, and most organizations face the challenge of tracking and monitoring
employment while managing staff at all levels in a difficult economic
environment.
One of the effects of legislative enhancement was the diminishing
value of the real labor contract, as the rights of workers are increasingly
guaranteed by law. There are three main sources of work law:
- Bunreacht
na hEireann/Irish Constitution
- Precedent
Law/ Common Law
- Legislation
1.
Bunreacht on hEireann/Irish Constitution
The Irish Constitution gives three fundamental rights to employees
whose effect on the employer/employee relationship should not be
underestimated:
·
Everyone
has the right to earn a living.
· Every
employee has the right to decide whether to join the union or not. It does not
require the employer to recognize this union.
·
Every
employee has the right to appeal to "natural justice". In short, when
an employee is charged with committing a criminal offense or employment is
terminated, he or she has the right to know the nature of the charge and to
respond to them.
2.
Previous Law / General Law
The relationship between the employer and the employee is lawful,
generally regulated by the employment contract and hence may be affected by the
principle of an extraordinary contract, either in relation to the actual terms
agreed between the parties or for the purpose of the contract or court
decisions in relation to matters in the past.
3.
legislation
As in any EU country, Ireland is obliged to incorporate EU
legislation into its national legislation. As a result, events at European
level have helped to shape Irish labor legislation, including directives,
regulations, and decisions of European courts.
The National Employment
Rights Authority (NERA)
The National Employment Rights Authority (NERA) was established by
the government in February 2007 after a compromise in the Social Partnership
Agreement. The goal of NERA is to ensure compliance with the legislation on
workers' rights in the workplace and to promote the culture of compliance in
Ireland through five main functions:
- information
- inspection
- Enforcement
- Prosecution
- Protection
of young persons
It should be noted that random inspections are conducted with
inspectors examining all employee employment and employee records, including
contracts and employee manuals. NERA may initiate legal proceedings against
employers who do not respect the rules and who impose fines on them.
The Start of employment
According to the Employment (Information) Act 1994, an employer is
required to submit to each new employee a "statement of the terms and
condition" describing the following information:
- Name and
address of employer and employee
- Place of
work and date of employment.
- Job
title and job description.
- Working
time, including overtime
- Payment
rates and payment details.
- Entitlements
to rest periods and breaks.
- The
notice period to be delivered by both parties.
- Objections
and disciplinary actions.
- Pensions
info / PRSA
Wages
All employees are entitled to a written statement stating the
amount of gross wages and salaries (Payment Of Wages Act 1991).
Under the National Minimum Wage Act 2000, the minimum wage per hour
is now applied to all persons working under a labor contract, including
full-time employees. The current minimum wage is 8.65 euros per hour; There are
exceptions to this rule, including employees in sectors covered by employment
contracts and employees under the age of 18.
Equality/Discrimination
It is illegal to discriminate against any current or potential
employee during the employment process for the following reasons:
- Gender
- Age
- Sexual
orientation
- Marital
status
- Religious
belief
- Disability
- Race
- Membership
of the traveling community
Employers are responsible for the actions of their employees while
they are at work, even if they do so without their knowledge or permission. As
a result, employers must take reasonable steps to prevent abuse and
discrimination within their workforce.
Part-time workers
A law has been introduced that guarantees full-time employees the
same rights and protection as full-time employees and bans the discrimination
of employees on part-time working hours.
If a part-time employee is treated less favorably than his
full-time colleagues, the employer must justify such treatment for
"objective reasons".
Holidays
All employees are entitled to 4 weeks of paid annual leave
(Organisation Of Working Time Act 1997). Employees also have the right to 9
days holiday leave. It should be noted that maternity leave workers are
considered to have a job during that leave and therefore have a right to a
4-week vacation.
Maternity leave
Every employee is entitled to maternity leave for 26 consecutive
weeks. Employers do not have to pay to an employee during that period, but
maternity allowance may be available from the state, provided the corresponding
PRSI contributions are paid. An employee also has the right to extend this
maternity leave for an additional 16 weeks. Again, this is unpaid leave and we
should not forget that the Social Protection Department does not pay maternity
benefits during this extended period. Employees must notify the employer in
advance of their intention to take maternity leave 4 weeks in advance.
Employees also have the right to paid leave during their working
hours for visits to doctors before and after delivery.
An employee has the right to return to his or her previous
employment after maternity leave or an equivalent substitute position under the
same conditions. Notice of termination of employment during maternity leave is
null and void.
Adoptive leave
An adoptive parent (father or mother) has the right to 24 weeks of
adoptive leave. Again, the employer is not obligated to pay to the employee
during that period. As with maternity leave, adoptive leave may be extended for
16 weeks. The employee has the right to return to the old job.
Parental leave
The 1998 Parental Leave Act gives both parents 14 weeks of leave
after the birth or adoption of a child. The employer is not obligated to pay to
the employee during this period of leave. The leave may be considered a
continuous period of 14 weeks or it may be split over a specified period. An
agreement is usually reached between the two sides. An employee has the right
to return to work under conditions as before. An employee must have one year of
parental leave.
Emergency
Emergency Leave is also available when an employee is employed in a
particular relationship. This period is limited to 5 days in a period of 3
years, with a maximum of 3 days a year. The employer has to pay the employee
during that period.
License for health care
The 2001 Law on Custody Permit gives employees the right to receive
up to 65 days of care and attention. An employee must have 12 months of
uninterrupted service.
Emergency leave
Emergency Leave is also available when an employee is employed in a
particular relationship. This period is limited to 5 days in a period of 3
years, with a maximum of 3 days a year. The employer has to pay the employee
during that period.
Carer’s leave
The Carer’s Leave Act 2001 gives employees the right to receive up
to 65 days of care and attention. An employee must have 12 months of
uninterrupted service.
Hours of work
The organization of the Working Time Acts sets the rules relating
to working time. The average number of hours of employee work is 48 hours a
week, excluding rest periods or break time. The average is usually based on a
period of 4 months. Employees are entitled to a leave of at least 11
consecutive hours every 24 hours and must have at least one weekly rest for 24
consecutive hours.
There are a few exceptions to the above, which include different
rules for Sunday workers and night workers.
- Laws require employers to keep proper records to show they have met
legal requirements.
- The following is a summary of the records to be kept:
- A record
of the number of hours worked by each employee.
- Weekly
recording of an employee start and end time notifications.
· The
leave record that is awarded to employees every week and details of the
payments that have been made.
Redundancy
The area of redundancy for the last few years has been heavily
regulated, particularly in areas such as severance payments and selection
processes. Below you will find a brief summary of some of the issues involved:
1.
Redundancy payment
- The Redundancy Payment Acts describes various situations that would
represent "redundancy" for legal purposes, including:
- The professional requirements of employees to perform a job of a
particular type in that place have ceased or decreased.
- The employer has decided to continue the business with fewer
employees, and the job done by the concerned employees will be allocated to
other employees.
- When an employee has been redundant, he may be entitled to a legal
fee for termination of employment provided that certain conditions are met and
the main ones are:
- The employee must be more than the age of 16
- An employee must be permanently employed for 104 weeks.
- Payment of statutory redundancy is based on a weekly pay of
employees at the time of cancellation. However, this amount is subject to a
maximum of € 600 per week. Payment, which is exempt from income tax, is 2 weeks
from normal payouts for each year of work, plus 1 bonus weeks pay.
- The employer is entitled to a refund from the Department of
Enterprise, Trade, and Innovation in the amount of 60% of the surplus paid to
the employee.
- When an employer cannot pay the employee a legal right to cancel
due to the financial situation, the plan foresees that an employee receives
this right directly from the department and the employer is required to repay
the Department their portion of the cost (40%) at a later date.
- Although employers are obliged to pay the statutory cessation fee
when the required conditions are met, additional payments often give as
goodwill or because the terms of the employment contract are the same. The tax
status of this payment will depend on the circumstances.
Fair selection for redundancy
When an employee finds himself unfairly selected for redundancy,
he/she may apply for unfair dismissal in accordance with Unfair Dismissal Acts.
An employee selected for any of the following reasons will be considered
"unfair":
- Trade
union membership
- Religious
or political opinions
- Race,
color, age or sexual orientation
- Membership
of the traveling community
- Pregnancy
- The
employees involved in any criminal proceedings against the employer
If the selection method differs from the previously agreed
selection procedure between the employer and the employee or the trade union,
the employer must prove that they justified special reasons.
Unfair dismissal
When an employee finds that he or she is unfairly dismissed, he or
she may be asked to be heard by the Employment Appeals Tribunal (EAT). It is
necessary to take into account the fact that the employee must have at least
one year of continuous service before he can apply for unfair dismissal. An
employee may also apply for "constructive dismissal", that is, the
behavior of the employer was such that he was forced to leave.
If the EAT considers that an unfair dismissal has occurred, for
example, if the situation does not represent a true "redundancy" or
if the employee is chosen unfairly, he has the authority to:
·
Reinstall
the employee in his previous position or recall him/her again in a new
position.
·
Award
Compensation - maximum of two years’ gross salary.
In unfair dismissal claims, the burden of proof lies with the
employer who must justify his position and the measures taken. In that sense,
the employer should always ensure that they are acting in accordance with the
procedure when the employee is dismissed.
Redundancy procedure
The minimum Notice and Terms of Employment Act prescribe minimum
periods of notice that the employer has to give at the end of the employment
relationship, regardless of the conditions set out in the employment contract.
All employees with a continuous service of 13 weeks or more have
the right to a minimum period of notice depending on the duration of their
service:
- 13 weeks to 2 years’ service (1 week)
- 2 years to 5 years’ service (2 weeks)
- 5 years to 10 years’ service (4 weeks)
- 10 years to 15 years’ service (6 weeks)
- 15 years or more (8 weeks)
The RP50 form must be sent to the employee through a notice of
redundancy. A copy of this form is also sent to the Minister of Enterprise,
Trade & Employment.
An employee may be entitled to a longer period of notice if the employment
contract provides for it. The employee has the right to waive the right of
notice and accept the "payment instead of notice".
Collective redundancies
The Protection of Employment Act prescribes certain procedures that
an employer must respect if he thinks about collective redundancy. First, the
employer has to negotiate with employee representatives, but not always with
the union. The employer is also required to notify the Minister of Enterprise,
Trade & Innovation about the planned redundancy.
