Inchicore College of Further Education Employment Law Essay

Lookingfor 4000 to 5000 words please if you can’t do this much do not take this question please.

Scenario

You are an intern in HR FIRST LTD a firm which provides HR Services to companies.

The firm is putting together a guide on aspects on Employment and IR law and your supervisor has asked you to undertake the following tasks for possible inclusion in the guide.

Tasks

1 The Employment Equality Acts 1998-2015 seek to promote equality by prohibiting discrimination and harassment including sexual harassment. Evaluate by answering A-D below

A Explain the concepts of: discrimination, (include the 9 grounds, direct, indirect and discrimination by association), harassment, sexual harassment, and Victimisation.

B Discuss where an employee can bring a complaint in respect of a breach of the Employment Equality Acts 1998-2015 and the remedies available and where one can appeal to.

C Evaluate the aspects of employment where an employer is prohibited from discriminating referring to case law in your answer

D Identify the EU law upon which the Employment Equality Acts 1998-2015 are based.

2Evaluate the role and function of labour relations institutions and trade unions and the legal procedures of redress which apply under employment law by answering A-D below.

A Evaluate the 3 different procedures the WRC can use to deal with a complaint of breach of employment rights.

B Explain where one can appeal from a WRC adjudication including whether one can bring an appeal to the Courts and any time limits.

C Evaluate the role and function of Trade Unions

D Evaluate the role of the Labour Court in Industrial Relations.

• Investigate and discuss the legislative framework governing Safety Health and Welfare at work investigating the obligations on employers and employees.

Discuss how the law on collective bargaining has been changed by the Industrial Relations Act 2015 and the effect of the changes.

QQI
6N4322
Employment law
Assessment Brief 3 – Alternative Assessment -40%
Class:
BHR6
Date handed out: 16/3/22
Tutor: Joan Kelly
Submission date: 6/4/22
Scenario
You are an intern in HR FIRST LTD a firm which provides HR Services to
companies.
The firm is putting together a guide on aspects on Employment and IR law and
your supervisor has asked you to undertake the following tasks for possible
inclusion in the guide.
Tasks
1 The Employment Equality Acts 1998-2015 seek to promote equality by
prohibiting discrimination and harassment including sexual harassment.
Evaluate by answering A-D below
A Explain the concepts of: discrimination, (include the 9 grounds, direct,
indirect and discrimination by association), harassment, sexual
harassment, and Victimisation.
B Discuss where an employee can bring a complaint in respect of a breach
of the Employment Equality Acts 1998-2015 and the remedies available
and where one can appeal to.
C Evaluate the aspects of employment where an employer is prohibited
from discriminating referring to case law in your answer
D Identify the EU law upon which the Employment Equality Acts 1998-2015
are based.
2 Evaluate the role and function of labour relations institutions and trade
unions and the legal procedures of redress which apply under employment
law by answering A-D below.
A Evaluate the 3 different procedures the WRC can use to deal with a
complaint of breach of employment rights.
B Explain where one can appeal from a WRC adjudication including whether
one can bring an appeal to the Courts and any time limits.
C Evaluate the role and function of Trade Unions
D Evaluate the role of the Labour Court in Industrial Relations.
3 Investigate and discuss the legislative framework governing Safety Health
and Welfare at work investigating the obligations on employers and
employees.
4 Discuss how the law on collective bargaining has been changed by the
Industrial Relations Act 2015 and the effect of the changes.
Submission guidelines
The information is be presented in the form of an essay using Font 12 Times
New Roman, 1.5 line spacing and referenced as per the Harvard System with
use of a Bibliography and case law referenced by Name and Year
Submission is through moodle on or before the submission date.
Marking Scheme
Criteria
Relevant information appropriately
presented
Understanding and knowledge of
chosen topic clearly demonstrated
and a comprehensive evaluation
provided
Legal Principles appropriately
applied, and relevant case law and/or
examples included
.
Total
Marks
13
14
13
40
Employment Law
Level 6 QQI
• While all reasonable care has been taken in the preparation and
completion of these notes no responsibility is undertaken for any
errors and/or omissions.
• These notes do not constitute legal advice and are intended for
use only with the relevant lectures.
• They should not be relied upon as a substitute for legal advice
and no liability is accepted by any person purportedly relying on
the contents of this presentation and/or any accompanying notes
with or without legal advice .
• No part of these notes or related lecture content may be
reproduced without the prior permission, in writing of the author.
• Joan Kelly 2020 ©
History of regulation of employment
•
•
Regulation of employment is not a modern phenomenon. The Anglo-Saxon’s had rules set by guilds. While statutory
provisions are more associated with a modern employment law, measures like the Ordinance of Labourers (1349), the Statute of
Labourers (1351) and the Statute of Artificers (1563) represent primitive and often unintentional forays into the arena of workers’
rights by early legislators.
•
•
The earliest surviving legal structures designed to regulate the employment relationship in this jurisdiction were developed by
common law and judicial precedent mostly in the genre of contract law. Judges created precedents defining rights and
responsibilities that were followed for centuries. They continue to be law where not overtaken by Statute or in conflict with the
Constitution or EU law.
•
Employment law was based on the law of contract. While issues of contract still dominate a significant part of the relationship
between employer and employee, the law of employment is now a substantive legal area in its own right. The principles of
employment law became more complex as business and industry changed and labour organised and lobbied for greater rights .
•
•
While the Common Law developed a core framework to regulate the employment relationship, principally based on contract ,
its rulings were overwhelmingly motivated and influenced by the “servant and master” model of the nineteenth century.
• One must remember the inherent imbalance in bargaining powers between
•
employer and employee often left the average worker at the mercy of the employer. As unemployment could mean destitution
or the work house in an era before social welfare, free health care or education. In such circumstances men and women were often
forced to work in dangerous conditions and on punitive terms in order to avoid destitution.
• After the 2 world wars the legislature starting addressing the area of employment
•
Endeavours such as extending the rights of employees, enforcing health and safety guidelines, managing
industrial relations, developing dignity at work practices, installing formal tribunals to arbitrate workplace disputes,
setting a minimum wage and a maximum working week, began to be addressed..
• Thus Common law and statute now govern employment law. Statute changing common law in certain respects and
modifying or limiting certain freedoms to contract by requiring specific terms in employment contracts. Where an
area is governed by Statute Common law can give flesh to the bones of the Statute with case law judgments.
• That is not to say that the common law and statute existed or exist as separate and distinct entities. For instance, the
Unfair Dismissals Acts 1977-2015 applies only to those working under a contract of employment.
• Therefore, a court or employment tribunal must distinguish between an employee and an independent contractor to
decide if the aforementioned statutory measures apply. Yet, to this day, common law tests still form the central basis
of identifying one’s contractual status.
• Further it is tribunal and Court decisions that have fleshed out what is required for a constructive dismissal. Also one
must remember that domestic law is governed by the Constitution which is a source of rights in itself in particular in
relation to fair procedures.
• Modern Statute law in the employment realm has been greatly influenced
by EU law
and
• to a large extent derives directly therefrom as it is implementing EU directives.
SOURCES OF EMPLOYMENT LAW
• THE MAIN SOURCES OF IRISH LAW
•
• European Law
• The Irish Constitution of 1937
• Legislation (also known as Acts or Statutes
• Equity
• The Common Law (also known as the Doctrine of Precedent)- Case law
– Judge made law
•
Custom
• International Law
Common Law
• Grew out of decisions of judges over years that were followed and respected.
• – The accumulation of these decisions resulted in a coherent body of law contained in law reports.
• Which by virtue of the demands of the doctrine of precedent enjoy binding force of law.
• -The doctrine of precedent is the application of a principle of law, as laid down by a higher court on a
previous occasion in a similar case to the case before the court
• . – ie the doctrine of precedent involves the extraction of relevant legal principles from earlier cases.
• -Lower courts are bound by previous decisions of higher courts and must follow their
• Precedents
• -The Supreme Court in Ireland has held it is not bound by its earlier decisions.
• -To this day significant areas of law are governed by common law unaffected by rules
derived from other sources.
• -The only remedy the common law could provide was damages
•
• The Common Law primarily influences employment law through the law of
contract and tort.
• Contract – is the law of obligations
• – is where an offer has been accepted, there is consideration and there is an
intention to create legal relations
•
Tort – is a civil wrong for which the normal remedy is unliquidated damages.
•
The most common tort is negligence – breach of a duty of care by failure to
do as a reasonable person would and causing damage that is reasonably
foreseeable – Donoghue v Stevenson [1932] AC 562
Glencar Explorations v mayo Co Co [2001] IESC
.
•
•
•
•
• Additionally, the Common Law has established a series of duties
imposed on employers and employees which are implied into every contract
of employment.
• Common Law Precedent plays a role in defining what constitutes an
employee i.e. a contract of service versus a contract for service
• While statute has come to replace the Common Law as the primary
source of employment rights and regulations, the courts interpret those
rights and flesh them out in caselaw.
•
Equity
• (1)Due to the rigidity of the Common Law justice sometimes wasn’t done and a practice grew of
petitioning the King for justice and the King in order to deal with theses petitions set up the Courts
of Equity/Chancery which applied the maxims of equity –
u He who comes to equity must do equity
u He who comes to equity must come with clean hands etc
•
• (2)A person could take an action in the common law courts and fail and then go over the road to
the courts of equity and win.
•
If there was a conflict of judgments the court of Equity prevailed.
• (3)Eventually The Supreme Court of Judicature Act, 1873 and its Irish counterpart in 1877 merged the
administration of common law and equity to create a unified court system.
• (4)The most common example of an equitable remedies nowadays is:u An injunction – ie a court order to force a person to do something or refrain from doing something
eg unlawful picketing.
u An order for Specific Performance of a contract
•
• Those remedies are relevant in employment law where damages are not an adequate remedy in
particular eg cases of wrongful dismissal of an office holder
•
• (5)Equitable remedies are discretionary by nature – ie the Judge has a discretion whether or not to grant
them.
•
•
•
Under employment law, equity is primarily concerned with remedies.
•
Remedies available under equity include injunctions and specific performance.
•
Additionally, equity can also impose a fiduciary duty on employers which goes beyond common
law or contractual duties.
•
3 Irish Legislation
• Legislation is the laying down of legal rules by a competent authority.
• They are laid down purely for the future and without any reference to any actual dispute.
• Legislation (statute law/acts of parliament) is law that is enacted by a body constituted for that purpose.
Subject to the obligations of European Union Membership as provided for in the Constitution of Ireland, the
sole and exclusive power of making laws for the State is vested in the Oireachtas (Parliament ). The
Oireachtas consists of the President and two Houses, Dáil Éireann ( the House of Representatives ) and
Seanad Éireann (the Senate ).
• Unlike the common law it is specifically created and its origin is clearly identifiable in a particular exercise of
law making to achieve certain policy objectives.
• In the past legislation was used to alter the common law on the principle that parliament was supreme.
• The Constitution designates the Oireachtas as the sole law making body in the State.
• Statute law is enacted by the Oireachtas.(Primary (superior) Legislation ) – these are known as Acts of the
Oireachtas.
• A piece of legislation before it becomes law is known as a bill.
•
n 1800-1922 the competent authority was the Westminister Parliament – this legislation
still has force of Law in Ireland – (so long as it is not in conflict with the constitution).
n Now the Oireachtas is the sole lawmaking body under the constitution.
n There are 2 main conditions imposed by the Constitution on the law making powers of
the Oireachtas
u It shall not enact any law which is in any respect repugnant to the constitution (Art
15.4). (any such law is invalid)
u It shall not declare acts to be infringements of the law which were not so at the date
of their commission (Art 15.5) {Prevents retroactive penal sanction}.
• There are numerous pieces of legislation that imply terms into employment contracts e.g
Minimum Notice and Terms of employment Acts 1973-2001,
• The Maternity Protection Acts 1994 – 2004 which transposed the terms of the European
Council Directive 92/85/EEC into Irish law
• Carers Leave Act 2001provides for carers leave
• The National Minimum Wage Act 2000 provides for a min wage and that it can be set by
the Minister by means of regulation i.e. secondary legislation .
• (2) Legislation is prospective only and without any reference to any actual
dispute.
•
• (3) Secondary (subordinate) legislation is enacted by bodies or individuals
conferred with that power by statute. (The Oireachtas has basically delegated the
power to make certain laws – these laws are implemented by Statutary
instruments, orders, regulations and bye laws and autonomous subordinate
legislation and have the same force of law as statutes passed by the Oireachtas).
• – Numerous statutes give powers to ministers to make statutory instruments
eg drink driving alcohol limits and speeding limits under the Road Traffic Acts,
•
• SI 146/2000 grievance and Disciplinary procedures.
•
S.I. No. 427/2020 – National Minimum Wage Order (No. 2) 2020
• Made by the Minister under powers given her by the Minimum Wage Act 2000
• The first period of legislative expansion in Employment law began
with the Industrial Revolution. Laws like the Master and Servant Act
1823 and the Truck Act 1831, were parliament moving into an era of
regulation in the workplace.
•
• The creation of the Royal Commission on Trade Unions in 1867
allowed trade unions to lobby and propose legislative changes they felt
were in the interest of the toiling classes.
•
• The Trade Union Act lifted criminal and civil liability from trade
unions for being in violation of the restraint of trade doctrine.
•
• The beginning of the Twentieth Century saw a new wave of legislative
measures designed to regulate the employment relationship.
• The Trade Boards Act 1909 set a minimum wage for those working in trades
with relatively low pay rates. The Coal Mines (Minimum Wage) Act 1912
followed, setting a minimum rate of renumeration for those employed in the
mining industry.
•
• This era of expansive regulatory measures also influenced the organisation of
working time. The Coal Mines Regulation Act 1908 and the Shops Act 1912 both
demonstrated a willingness by parliament to impose conditions on employers with
regard to working hours.
•
• There was an explosion of legislative activity in relation to labour law
catalysed by changing social, cultural, political and economic conditions post
WW1 and 2
• With the establishment of the Free State in 1922 and the eventual declaration
of the Republic of Ireland in 1949, legislative powers were adopted, by a Dublin
Government. But Westminster’s laws still remained largely on the statute book in
Ireland and prior to 1973 when we joined the EU but there was a relative paucity
of domestic protective legislation save the following:
– Public Holidays Act 1924,
– the Vocational Education Act 1930, the Apprenticeship Act 1931,
– the Conditions of Manufactures Act 1932,
– the Unemployment Assistance Act 1933,
–
the Superannuation Act 1936 and the Local Government (Superannuation) Act
1956.
– Worthy of mention on its own was the Conditions of Employment Act of 1936.
• A lot of statute law post 1973 was influenced by our membership of
the EU and indeed some necessitated to implement EU Directives
• e.g. in relation to
•
• Leave: Maternity, Parental, Carer and Adoptive
• Discrimination and Equality
• Health and Safety
• Dismissal and Redundancy
• Wages, Hours and Terms of Employment
•
The Constitution of Ireland
• (4) THE 1937 IRISH CONSTITUTION
n The constitution is the basic or primary source of Irish law and takes
precedence over other inferior sources of law – eg Statute Law and Common
Law.
u – Rules which arise from these inferior sources depend on the
constitution for their validity. It has a higher status tha any other
domestic law
•
n It may only be amended by the people by referendum
n
n The Constitution is divided into articles dealing with the following:u The State (name/territory),
u the institutions of the state, the Court system, separation of powers – ie
tripartite system of government Legislature/Executive/ecogniz
u Fundamental Rights eg free speech, freedom of association etc
•
•
• Art 40.3 of the Constitution is the source of an unenumerated personal
constitutional right to earn a livelihood – Murtagh Properties v Cleary[1972]
IR 300
• Art 40.1 of the Constitution guarantees the right to equality and no –
discriminatory treatment between the sexes – also protected by the
Employment Equality Acts 1998-2015
• A breach of fair procedures in an employment case can lead to a claim that
constitutional justice has not been provided. Glover v BLN [1973] 3 IR 388
•
5 EU Law
• -The EU possess its own legal system complete with a body of law which is
applicable and enforceable in each member state and can be relied upon in the
national courts by citizens of the Member States
• -Community Law enjoys supremacy over conflicting national law
• (including constitutional law) both as a matter of EU law and national law
• Treaties – Treaty of Rome, Nice, Amsterdam Lisbon etc are the primary law of the
EU
• Regulations and Directives are secondary law and are initiated by the Commission
and made by a combination of the Council of Ministers and Parliament
• Through co-decision, co-operationa and conssent.
• EU law (citizensinformation.ie)
• Legislative powers (europa.eu)
– these are binding & directly applicable across the EU
n Once a regulation is made it automatically becomes law in MS – it is
directly effective without need of Oireachtas taking any further
legislative action
•
• Directives -are binding on the Members States for the
objective/result to be achieved but national authorities decide how
to incorporate the Directive into their law. (form and methods) i.e.
the end result is defined but the means to that end is left to the
individual member state.
•
• Many of our Irish Statutes were passed to implement EU directives eg
the Employment Equality Acts 1998-2015
• -Regulations
• The Court of Justice of the EU has 3 main roles
• 1 The Court ensures that EU legislation is interpreted and applied in the same way in each
Member State – (Europa.eu, 2021)
• Our Courts can refer a question of EU law to CJEU for a preliminary ruling under Art 234
TFEU .
• Our Supreme Court is not free to give its own interpretation of EU Law it must follow the CJEU
and must refer a matter to the CJEU for clarification if it is unclear on the existing caselaw of the
CJEU – thus our SCT not the highest Court
• 2 Enforcement proceedings can be taken against the State by the EU Commission for failure to
comply with EU law or failure to eg implement a directive or implement it within the time limits
set out which can ultimately result in the State being fined. – Thus we cannot refuse to implement
diretives.
• 3 The Court can review the legality of actions – A Natural person can institute proceedings
against any decision addressed to him or re any other community act that is of direct or individual
concern
•
•
•
•
•
The Court of Justice has established in various cases that the Court decisions on the interpretation of
community law are binding on all courts in the member states.
• This only applies to the areas of law with which the EU is concerned.
• Certain areas such as family law, criminal law and national court procedures remain unaffected.
• The doctrine of supremacy of EU law?
Where there is a conflict between EU law and national law even Constitutional Law EU law
prevails.
CJEU can overrule or disapply a piece of national legislation enacted by the Member state
government if it conflicts with EU law–
Member States have transferred sovereignty to the European Union and cannot take it back
unilaterally.
In Costa v ENEL [1964] the ECJ established the doctrine of supremacy of European Community law
over national law as by signing the Eutreaties we ceded sovereignty to the EU in certain areas
•
•
•
In Simmenthal [1978] Case 70/77 it established that EU law prevails over conflicting national law which was
enacted both prior to and after the EU law.
• European Court of Justice interpretes EU law and is hugely influential on
employment law in Ireland eg Employment Equality law as EU law is superior to
National Law.
•
•
Workers’ rights have been improved through EU directives which are
implemented into national law by the member states within a particular time
frame
•
Working hours, conditions of employment and discrimination
•
Charter of Fundamental Rights enshrines personal, civil, political, economic and
social rights of EU citizens and residents in EU law
• The Charter of Fundamental Rights contains a preamble and 54 articles, grouped in 7 chapters:
•
chapter I: (human dignity, the right to life, the right to the integrity of the person, , prohibition of slavery and
forced labour);
•
chapter II: freedoms (the right to liberty and security, respect for private and family life, protection of
personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of
expression and information, freedom of assembly and association, freedom of the arts and sciences, the right
to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a
business, the right to property, the right to asylum, protection in the event of removal, expulsion or
extradition);
•
chapter III: equality (
•
chapter IV: solidarity (workers’ right to information and consultation within the undertaking, the right of
collective bargaining and action, protection in the event of unjustified dismissal, fair and just working
conditions, prohibition of child labour and protection of young people at work, family and professional life,
social security and social assistance, health care, access to services of general economic interest,
environmental protection, consumer protection);
•
chapter V: citizens’ rights (tvote and stand as a candidate at elections
•
chapter VII: general provisions.
• The charter also applies to EU countries when they implement EU law.
•
• 6 International Law
• It is the body of law that governs states in their relationship with one
another.
• Treaties create obligations between states they do not confer legal
rights on the individual citizens of those states unless implemented
into Irish Law by Act of the Oireachtas.
• Eg The European Convention on Human Rights was ratified by
Ireland in 1953 but it was only implemented into Irish Law by virtue
of the European Convention on Human Rights Act 2003
7 CUSTOM
• Generally implies terms into contracts –
• Habitual practice
• The custom must be :-Certain, reasonable and continuous
• It exists in a particular locality & may be recognized as law.
• With the development of legislation and common law custom has almost been
eliminated save to imply terms into some contracts due to custom and practice.
•
•
•
• The hierarchy of Sources of Employment law is – EU Law – Constitution –
Statutes- Case Law
•
• Statutes are
• the most prolific source of Employment law, and
• in the main Irish Statute Law has been driven by membership of the EU – these
Acts or SI’s in general set out rights of employees and consequent
duties/responsibilities of employers.
• .
• Decisions and judgments of Irish courts and, in some instances, WRC or before
that the EAT form precedents which are usually followed pursuant to the
principle of stare decisis. hdoctrine of precedent – Bing
• Judgments of foreign courts like those in the United Kingdom have persuasive
value.
COURTS system
•
Art 34.1 – justice shall be administered by courts established by
law by judges appointed in the manner provided by this constitution
and save in such special and limited cases as may be prescribed by
law shall be administered in public.
• Justice shall be administered in courts however Art 37.1 allows other
persons to administer limited functions and powers of a judicial
nature except with regard to criminal matters, all criminal matters
must be dealt with by courts.
•
31
• In general justice is administered in public per Art 34 – save some
exceptions – eg
•
•
•
•
•
•
Urgent applications – bail/ habeas corpus
family law
lunacy matters
minors
proceedings re disclosure of secret manufacturing process
criminal rosecutions for rape and sexual offences
• We have a hierarchical court system.
• Art 34.2 – “ The Courts shall comprise Courts of First
Instance and a Court of Final Appeal”
• The High Court is a court of first instance with
unlimited jurisdictio
• The Court of Final Appeal is the Supreme Court
• .There is a Court of appeal by virtue of referendum of
4/10/13 which amended the constitution to allow for
it. The Court of appeal Act 2014 brought it in. [signed
20.7.14]
33
• Art 34.3.4 provides that “ The Courts of First Instance
shall also include courts of local and limited
jurisdiction with a right of appeal as determined by
law” and acts have been passed to provide for these,
• There is a geographical limit on these local courts and
a limit on the cases they can hear and the amount
they can award and the penalties they can impose.
They are creatures of legislation in that they only have
the powers given them by legislation
34
•
•
•
•
•
•
Court structure as at Oct 2014
CRIMINAL
Supreme Court
l
l
l
I
I
I
I
I
I
I
CIVIL
Supreme Court
I
I
i
Court of Appeal
Court of Appeal
(Hears appeals on conviction and/or sentence on indictment)
(Hears appeals
DPP appeals on undue leniency of sentence)
from the High` Cour t
I
l
l
I
I
I
• Central Criminal Court
Special Criminal Court l
High Court
• Most serious Indictable Offencesl OAS Act 1939
Constitutional
I
l-terrorist offences etc
cases, JR’s
•
I
Unlimited
.
I
I
• Circuit Court-indictable offences
Circuit Court
•
l
I
€75,000 l
I
€60,000 for P.I.’s
•
l
I
l
I
• District Court
– Summary Offences
I
District Court
•
€15,000
•
191
•2.2 INSTITUTIONS
INVOLVED IN LABOUR LAW
•
• The Rights Commissioner Service was a service of the Labour
Relations Commission.
• RC investigated industrial disputes under the industrial
relations Act 1969 other than disputes related to rates of pay,
hours or times of work or annual holidays of a body of workers.
• RC dealt mainly with individual workers and their investigations
were voluntary and conducted in private.
• A Rights Commissioner issued a non binding recommendation
with their opinion having conducted an investigation – .
• A party to a dispute under the Industrial Relations Acts could
appeal a RC recommendation to the Labour Court whose
decision was binding though not legally enforceable.
• Rights Commissioners in addition to their functions under the Industrial
Relations Acts also investigated .cases under the following acts
• : – Unfair Dismissals Acts 1977 to 2005.
• Payment of Wages Act 1991.
• Terms of Employment (Information) Act 1994 and 2001.
• Maternity Protection Acts 1994 and 2004.
• Adoptive Leave Acts 1995 & 2005.
• Protection of Young Persons (Employment) Act 1996. Protection of Persons
Reporting Child Abuse Act 1998. National Minimum Wage Act 2000.
• Protection of Employees (Part –Time Work) Act 2001.
• Protection of Employees (Fixed –Term Work) Act 2003.
•
Organisation of Working Time Act 1997.
• Parental Leave Acts 1998 & 2006
• European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. European Communities
Protection of Employment Regulations 2000
•
Carer’s Leave Act 2001.
• Such RC investigations save re Payment of Wages Act, were in private and the Rights Commissioners issued recommendations or
decisions (depending on the legislation) which may be appealed to the Employment Appeals Tribunal (or the Labour Court in the
case of,
• the Organisation of Working Time Act 1997, the National Minimum Wage Act 2000
• Protection of Employees (Part-Time Work) Act 2001 and Protection of Employees (Fixed – Term Work) Act 2003).The
Tribunal/Court then made a determination, which was legally binding and enforceable.
• Investigations under the Payment of Wages Act were conducted in public (unless a party requested otherwise) and Rights
Commissioners issued legally binding decisions, which could be appealed to the Employment Appeals Tribunal .,
• Per WRC available at About the WRC – Workplace Relations Commission accessed on 7/9/21
“The
Workplace Relations Commission (WRC) is an independent, statutory body which
was established on 1st October 2015 under the Workplace Relations Act 2015 (No. 16 of
2015).
• It assumes the roles and functions previously carried
out by the National Employment Rights Authority
(NERA), Equality Tribunal (ET), Labour Relations
Commission (LRC), Rights Commissioners Service
(RCS), and the first-instance (Complaints and
Referrals) functions of the Employment Appeals
Tribunal (EAT).”
• The Workplace Relations Commission (WRC) has responsibility for
•
•
•
promoting the improvement of workplace relations, and maintenance of good workplace
relations,
promoting and encouraging compliance with relevant enactments,
providing guidance in relation to compliance with codes of practice approved under Section 20
of the Workplace Relations Act 2015,
•
conducting reviews of, and monitor developments as respects, workplace relations,
•
conducting or commissioning research into matters pertaining to workplace relations,
•
•
providing advice, information and the findings of research conducted by the Commission to joint
labour committees and joint industrial councils,
advising and apprising the Minister in relation to the application of, and compliance with,
relevant enactments, and
•
providing information to members of the public in relation to employment
•
dealing with complaints in relation to contravention of employment law
The WR Commission’s core services include:
• the inspection of employment rights compliance,
• the provision of information,
• the processing of employment agency and
• protection of young persons (employment) licences and
• the provision of mediation, conciliation, facilitation and advisory services.
• The Commission has a board consisting of a chairperson and 8 ordinary members
appointed by the Minister for Jobs, Enterprise and Innovation.”
• Enforcement
• Complaints in relation to alleged contraventions of
employment and equality legislation may be
presented to the Workplace Relations Commission.
• Depending on the nature of the complaint, the
matter will be referred for either investigation or
adjudication.
• Inspection:
• Inspectors of the Workplace Relations Commission are authorised to carry out inspections,examinations or
investigations for the purposes of monitoring and enforcing employment legislation.
• Where an Inspector determines that a contravention of specified areas of employment law (including the nonpayment of certain monies due to an employee under employment law) has taken place, and the employer
concerned fails or refuses to rectify the non-compliance the Inspector may issue a Compliance Notice setting
out the steps the employer mus ttake to effect compliance.
• If the employer does not appeal and fails or refuses to rectify or set out in writing how he or she proposes to
rectify the matters set out in the notice, the Workplace Relations Commission may initiate prosecution
proceedings against the employer.
• In respect of a specified range of acts of non-compliance on the part of employers, an Inspector may serve a
fixed payment notice.
• If the person on whom the notice is served pays the amount specified in the notice the matter does not proceed
to Court. However, if the person fails or refuses to pay the amount the matter can be progressed to the District
Court where the defendant can defend their position in the normal way.
• WRC inspectors are also appointed by the Minister for Jobs, Enterprise and Innovation as authorised officers
for the purposes of the Employment Permit Acts 2003-2014.
• 27
• Adjudication: – See S41 of the Act
• Adjudication Officers of the Workplace Relations Commission (WRC) are
statutorily independent in their decision making duties as they relate to
adjudicating on complaints referred to them by the WRC Director General.
• The Adjudication Officer’s role is to hold a hearing where both parties are given
an opportunity to be heard by the Adjudication Officer and to present any
evidence relevant to the complaint.
• Hearings of the Workplace Relations Commission were originally held in private
until a SCT decision in Zalweski required otherwise.
• . The Adjudication Officer will not attempt to mediate or conciliate the case.
• Parties may be accompanied and represented at hearings by a trade union official,
an official of a body that, in the opinion of the Adjudication Officer, represents the
interests of employers, a practicing barrister or practicing solicitor or any other
person, if the Adjudication Officer so permits.
•
• The Adjudication Officer will then decide the matter and give a written decision in relation
to the complaint.
• The decision, which will be communicated to both parties and published, will
• (a) declare whether the complainant’s complaint was or was not well founded,
• (b) require the employer to comply with the relevant provision(s),
• (c) require the employer to make such redress as is just and equitable in the circumstances.”
• A party to a complaint may appeal to the Labour Court from a decision of an Adjudication Officer
within 42 days and from the Labour Court to the High Court on a point of law only and there is no
further appeal.
• An adjudication of an adjudication officer or a Labour Court decision may be enforced in the
District Court after 56 days) .
• Mediation:
• the Workplace Relations Commission (WRC) may be in a position to offer a mediation service in certain cases to
facilitate the resolution of complaints/disputes where possible at an early stage and without recourse to adjudication.
• Complaints/ disputes may only be referred for mediation with the agreement of both parties to the complaint/dispute.
• Mediation seeks to arrive at a solution through an agreement between the parties, rather than through an
investigation or hearing or formal decision.
• The Mediation Officer empowers the parties to negotiate their own agreement on a clear and informed basis, should
each party wish to do so.
• The process is voluntary and either party may terminate it at any stage.
• Mediation can take the form of telephone conferences with the parties, face-to-face mediation conferences/ meetings
or such other means as the Mediation Officer considers appropriate.
• The terms of a resolution are binding on the parties and if either party contravenes these terms, the contravention
will be actionable in any court of competent jurisdiction.
•
• See mediation-brochure.pdf (workplacerelations.ie)
•
• In Zalewski v. Adjudication Officer & Ors [2021] IESC 24
• Facts:
• Mr Zalewski’s employment was terminated in 2016 and he took an unfair dismissal claim to the WRC on foot
of this. During his hearing, an application was granted to adjourn the hearing in order to allow an absent
witness to give evidence at a later stage.
• At the adjourned hearing, Mr Zalewski was told that an Adjudicating Officer had already decided the matter
in favour of the Respondent, based upon preliminary written submissions only and dismissed Mr Zalewski’s
claim without allowing the full hearing to proceed.
• Mr Zalewski lodged an appeal to the Labour Court and was simultaneously granted leave to seek judicial
review before the High Court. In the High Court, Mr Zalewski argued that the process leading to the WRC’s
decision was unconstitutional and that the WRC was administering justice which was outside of its remit.
Mr Justice Simons had found that the activities of the WRC did not constitute the administration of justice,
due to the requirement of enforcement through the District Court. The judicial review application was
ultimately appealed to the Supreme Court.
•
Whilst the the Supreme Court in Zalewski found the WRC was not unconstitutional it held that :
the exercise of powers by Adjudication Officers pursuant to part 4 of the Workplace Relations
Act, 2015 as amended (‘the 2015 Act’) was the administration of justice under Article 34 of the
Constitution.
The administration of justice, in accordance with Article 34, is normally preserved for the Courts.
• However, the Supreme Court found that the administration of justice as carried out by the adjudication
service is permissible within the meaning of Article 37
• The Supreme Court by a 4/3 by majority judgment held that certain provisions of the Workplace Relations
Act 2015 were inconsistent with the Constitution, namely the provisions that provided for :
the conduct
of hearings in private; t
he absence of a provision for an Adjudication Officer to administer an oath or affirmation; and
the absence of a possibility of punishment for giving false evidence.
Legislation was thus required to address the issues.
• https://www.courts.ie/viewer/pdf/4b94d66e-d29c-45e8-8f91-ad0ff80257a5/2021_IESC_24
O’Donnell J..pdf/pdf#view=fitH
• https://ahcps.gdlindev.net/wp-content/uploads/2021/09/IRN-15-April-2021-Supreme-Courts%E2%80%98broad-perspective-saves-WRC-but-changes-afoot.pdf
• The Workplace Relations (Miscellaneous Provisions) Act 2021 was enacted to deal with the
issues in Zalewski and came into effect on Thursday 29 July 2021.
• Hearings in public and parties named in decisions
1. All WRC hearings save for those for disputes under s.13 Industrial Relations Act 1969), (i.e. all
employment rights hearings) will be conducted in public unless the relevant Adjudication Officer
decides, of their own motion, or following an application from a party to the proceedings, that
due to the existence of ‘special circumstances’, the proceedings should be conducted in
private.
2. ‘special circumstances’ may include the following non-exhaustive list: per workplacerelations.ie
o
cases involving a minor;
o
circumstances where a party has a disability or medical condition, which they do not wish to
be revealed;
o
cases involving issues of a sensitive nature such as sexual harassment;
o
cases involving a protected disclosure where there is an issue of the disclosure being made
in confidence;
o
or cases which could result in a real risk of harm to a party if the hearing is held in public, or
if the parties are named in the decision.
• The parties view that there are special circumstances does not
guarantee a private hearing ,
• it is a matter for the Adjudication Officer to decide based on the
facts of the case in accordance with the law and fair procedure.
• Following a hearing, a written decision stating party names will
be issued to the parties and uploaded to the WRC website.
• A fully or partially anonymised version of the decision may be
uploaded where the Adjudication Officer decides, of their own
motion, or following an application from a party to the
proceedings, that due to the existence of special circumstances,
the decision should be anonymised.
3. WRC case lists will continue to be published weekly with case reference details only, to
facilitate applications by the parties at the hearing.
• Evidence on oath or affirmation
5. During a hearing, the Adjudication Officer may take evidence on oath or affirmation.
And will explain to the witness (and interpreter, where appropriate) that by swearing an
oath or making an affirmation, the witness (and interpreter, where appropriate) is
promising to tell the truth, and that giving false evidence after doing so is a criminal
offence punishable by way of imprisonment and / or fine.
• __
•
•
•
•
•
THE LABOUR COURT
See https://www.workplacerelations.ie/en/WR_Bodies/Labour_Court/Labour_Court.html
Functions of the Labour Court
The Court’s functions can be divided between those relating to industrial relations
and those relating to the determination of appeals in matters of employment rights.
• With the enactment of the Workplace Relations Act 2015 the Labour Court now
has sole appellate jurisdiction in all disputes arising under employment rights
enactments.
• In employment rights cases, the Court
•
Hears appeals of WRC Adjudication Officers’ decisions under all of the various employment law
statutes where a worker makes a complaint alleging a breach of their rights under statute by their
employer.
Either party may appeal and there is a time limit of 42 days which includes the day of the
adjudication officer’s decision.
•
Hears appeals of Non-discrimination Notices and Substantive Notices issued by
the Equality Authority
•
approves working time agreements under the Organisation of Working Time Act, 1997
•
approves collective agreements regarding casual part-time employees under the Protection of
Employees (Part-Time Work) Act, 2001.
• The Labour Court issues written decisions which are legally binding and enforceable.
•
There can be an appeal from that decision on a point of law to the High Court or seek a Judicial Review by
the High Court
•
Per the Courts Service 2021 available at The Courts Service of Ireland accessed on 6/9/21 Judicial Review
•
“ is a mechanism by which an application can be made to the High Court to challenge the decision making
processes of administrative bodies and lower courts. The High Court Rules applying to judicial
review applications are found in Order 84 of the Rules of the Superior Courts.”
•
Per Citizens Information 2021 it “is a way for the High Court to supervise the lower courts, tribunals and other
administrative bodies to ensure that they make their decisions properly and in accordance with the law. Judicial
review is primarily concerned with the decision-making process rather than with the substance of the decision.
There is, however, a limited scope for review of the substance of a decision as well.” available at Judicial review of
public decisions (citizensinformation.ie) accessed 6/9/21
• STRUCTURE OF THE LABOUR COURT
• The Labour Court consists of 13, full-time, members – a Chairman, 4 Deputy Chairmen and 8 Ordinary Members, 4 of whom are Employers’
Members and 4 of whom are Workers’ Members. The Chairman and the 4 Deputy Chairmen are appointed by the Minister for Jobs,
Enterprise and Innovation. The Employers’ Members are nominated by IBEC (Irish Business and Employers’ Confederation) and the
Workers’ Members are nominated by ICTU (Irish Congress of Trades Unions).
• The Labour Court also has a legal adviser – the Registrar – appointed by the Minister for Jobs, Enterprise and Innovation.
• Operational Structure of the Labour Court – The Court operates in 4 separate Divisions, although certain issues may require a meeting of
the full Court.
• A Division is made up of the Chairman or a Deputy Chairman, an Employers’ Member and a Workers’ Member. Hearings are held in Dublin
and at several venues throughout the country.
• Enforcing a Labour Court decision on employment rights
• An employer has 42 days to implement the Labour Court’s decision. If the employer fails to do so, the
employee, the WRC, the wmployees Trade Union or excepted body can apply to the District Court for an
order directing the employer to do so. The District Court must grant the order.
• The District Court may order interest be paid on compensation awarded. It is an offence if the employer
does not comply with an order directing them to pay such compensation to an employee unless the
employer can show, that they were unable to comply with the order due to financial circumstances.
•
• Adjudication of employment rights disputes and complaints (citizensinformation.ie)
•
• Industrial Relations and the Labour Court
• In industrial relations disputes the Labour Court hears both sides of a
dispute that the parties have been unable to resolve themselves or with
the help of the WRC and issues a written recommendation setting out its
opinion on the merits of the dispute and how it should be resolved. This
is a recommendation that the parties are expected to seriously consider
but it is not binding.
•
The Labour Court (in the industrial relations setting) :
• (a) investigates trade disputes under the Industrial Relations Acts, 1946 to 2015
• (b) investigates, at the request of the Minister for Enterprise Trade and Employment, trade disputes affecting the
public interest, or conduct an enquiry into a trade dispute of special importance and report on its findings
• (c) hears Industrial Relations Cases referred to the Labour Court by the WRC following conciliation where a an
IR dispute has not been resolved and either party requests referral by WRC to Labour Court. These are usually
collective disputes between Trade Unions and Employers re pay or conditions.
• (d)hears appeals of Adjudication Officer’s recommendations/decisions made under the Industrial Relations Acts
a) Where a case under the Industrial Relations Acts involving an individual worker has been heard by an
Adjudication Officer and a Recommendation has been issued either party may appeal the Recommendation to
the Labour Court within six weeks of the date of the Recommendation. That date is counted in the 6 weeks and
the Court has no power to extend time for the making of such an appeal of a Recommendation of an
Adjudication Officer made under the Industrial Relations Act, 1969.
• (e) hears directly referrals of an IR dispute in 2 circumstances
1) A worker or workers in a trade dispute, or a trade union on his behalf, may directly refer a case to the Labour Court
under Section 20(1) of the Industrial Relations Act, 1969, on condition that the worker(s) agree(s) in advance to accept
the Labour Court’s Recommendation. This is usually where the worker/trade union initially referred the dispute to the
WRC Adjudication Service but the Employer did not agree to attend adjudication
2)A worker or workers and their employer who are engaged in a trade dispute may refer the dispute directly to the
Labour Court under Section 20(2) of the Industrial Relations Act, 1969 on condition that both parties agree in advance
to accept the Labour Court’s Recommendation.
• (f) establishes Joint Labour Committees and decide on questions concerning their operation
• (g) registers Joint Industrial Councils
• (h) investigates complaints of breaches of codes of practice made under the Industrial Relations Act, 1990
(following consideration of the complaint by the Workplace Relations Commission)
• (i) gives its opinion as to the interpretation of a code of practice made under the Industrial Relations Act, 1990
•
• (i) investigates disputes (where negotiating arrangements are not in
place) under the Industrial Relations (Amendment) Act, 2001 as
amended by the Industrial Relations (Miscellaneous Provisions) Act,
2004 and the Industrial Relations (Amendment) Act 2015
• (k) registers employment agreements
• (l) examines the terms and conditions of employment in a sector
pursuant to Section 14 of the Industrial Relations (Amendment) Act
2015
• (m) grants exemptions from the obligation to pay the remuneration
that would otherwise be payable under a Sectoral Employment Order
(SEO) pursuant to Section 21 of the Industrial Relations (Amendment)
Act 2015
• Part IV of the Labour Court Rules 2020 relate to the procedures to be
used in Industrial Relations cases referred to the Court.
• https://www.labourcourt.ie/en/useful-information/how-to-makean-appeal-referral/labour-court-users-guide-april-2020.pdf
The Labour Court and JLC’s and ERO’s
• Labour Court on the application of :
• (i) the Minister for Enterprise, Trade and Employment, or
• (ii) a trade union, or
• iii) any organisation claiming to be representative of the workers or the employers involved
• Can by statutory order establish a Joint Labour Committees (JLCs) under the Industrial Relations Act 1946
• A JLC – is an independent body made up of equal numbers of employer and worker representatives
appointed by the Labour Court. The chair is appointed by the Minister for Enterprise, Trade and
Employment.
• . A JLC is established to provide a process for fixing statutory minimum rates of pay and conditions of employment
for particular employees in particular sectors., through Employment Regulation Orders (EROs).
• Per WRC.ie (2021) “A JLC is made up of equal numbers of employer
and worker representatives appointed by the Labour Court and a
chairman and substitute chairman appointed by the Minister for
Enterprise, Trade and Employment. JLCs operate in areas where
collective bargaining is not well established and wages tend to be
low.” available at Employment Regulation Orders – Workplace Relations Commission accessed on
24/9/21
• Employment Regulation Orders
• An ERO is drawn up by a Joint Labour JLC , and given statutory effect
by the Minister.
• The ERO fixes minimum rates of pay and conditions of employment
for workers in specified business sectors and the employers in those
sectors are thereby required to pay wage rates and conditions of
employment not less favourable than those prescribed in the ERO.
• Where an ERO applies, a prescribed notice must be posted up in the
place of employment setting out particulars of the rates of pay and
conditions of employment for the sector.
• An employer of workers to whom an ERO applies is required to keep
records of wages for three years.
• Any breaches of an ERO may be referred to the Workplace Relations
Commission
• The Judgement of Mr. Justice Feeney,in March 2011 in John Grace Fried
Chicken Limited, John Grace and Quick Service Food Alliance Limited v The
Catering Joint Labour Committee, The Labour Court, Ireland and the
Attorney General
• upheld a challenge by fast food operators to an order setting minimum pay and
conditions for catering workers outside Dublin delivered on the 7th of July 2011
• declared that the provisions of sections 42, 43, and 45 of the 1946 Industrial
Relations Act and section 48 of the 1990 Act are invalid having regard to the
provisions of Article 15.2.1 of the Constitution of Ireland,
• Which meant that EROs in place on 7th July, ceased to have statutory effect from
that date.
• Thus it rendered the terms of the ERO’s unenforceable
• See Landmark High Court Ruling on JLCs (accountingnet.ie)
• The Industrial Relations (Amendment) Act 2012, which reformed the Joint Labour Committees’ wage-setting
mechanisms, came into force on 1 August 2012. The Act provides for the Labour Court to adopt an Employment
Regulation Order drawn up by a JLC. The ERO is then given statutory effect by the Minister for Enterprise, Trade and
Employment.
•
Under the Act:
•
JLCs have the power to set a basic adult wage rate and 2 additional higher rates
•
Companies may seek exemption from paying ERO rates due to financial difficulty
•
JLCs no longer set Sunday premium rates
•
When setting wage rates JLCs have to take into account factors such as competitiveness and rates of employment and unemployme nt
•
There are EROs for the contract cleaning and security industries – see below.
•
List of Joint Labour Committees
•
Agricultural Workers
•
Catering
•
Contract Cleaning
•
Early Learning and Care (ELC) and School-Age Childcare (SAC)
•
English Language Schools
•
Hairdressing
•
Hotels (Others excluding Cork)
•
Retail, Grocery and Allied Trades
•
Security Industry
• The Employment Regulation Orders listed below are currently
in force • Employment Regulation Order Security Industry Joint Labour
Committee 2015 S.I. 31 of 2017
• Employment Regulation (Amendment) Order (Contract Cleaning
Joint Labour Committee) 2020 – S.I. No. 608 of 2020
• Registered Employment Agreements -REA
• Are collective agreements made either between a trade union/unions
and an employer/group of employers or employers’ organisation,
• The REA relates to the remuneration or the conditions of
employment of workers of any class, type or group.
• It is binding only on the parties to the agreement in respect of the
workers of that class, type or group.
• In 2013, the regime for REA’s contained in Pt III of the Industrial Relations Act 1946 was
struck down by the Supreme Court in McGowan & Ors v Labour Court & Anor[2013]
• because a REA under the 1946 Act could bind employers who were not party to it.
• Accordingly the regime represented an impermissible exercise of the legislative power of the
State which is reserved to the Oireachtas.
• Under the Industrial Relations (Amendment) Act which was enacted on 22 July 2015 and came
into force on 1 August 2015 an REA will be legally binding only on employers and unions who
are party to them and on relevant employees of those employers.
• If there is a desire to bind non-party employers the persons concerned will need to seek an
SEO.
• The 2015 Act makes provision for three main areas, namely:
• (i)it creates a new regime for REA’s
• (ii)it makes provision for (‘SEOs’); and
• (iii)it adjusts the Labour Court’s jurisdiction to make legally
binding determinations affecting non-union employees,
created by the Industrial Relations (Amendment) Act 2001.
• An employment agreement (EA) is an agreement made
between a trade union(s) of workers and an employer(s) (or a
trade union(s) of employers), relating to the remuneration or
conditions of employment of workers of any class, type or
group, that is binding only on the parties to the agreement.
An EA becomes an REA when it is registered in the Labour
Court’s Register of Employment Agreements – S7
•
Any party to an EA may apply to the Labour Court to have the EA registered, and the Labour Court must register the EA if
the statutory conditions are satisfied. Those conditions are per S8 of the 2015 Act :
•
all the union(s) and the employer(s) party to EA agree that the EA should be registered;
•
the EA is expressed to apply to all the workers of a particular class, type or group and their employers party to the EA;
•
the trade union(s) party to the EA are substantially representative of the workers in the class, type or group to which the EA is
expressed to apply;
•
it is normal and desirable practice or expedient to have a separate REA for these workers in that class, type or group;
•
registration of the EA is likely to promote harmonious relations between the workers and their employer(s) and the avoidance of
industrial unrest;
•
the EA provides that, if a trade dispute occurs between the workers and the employer(s) party to the EA, industrial action or a lockout shall not take place until the dispute has been submitted to negotiation in the manner specified in the EA;
•
the EA must specify the circumstances in which a party or parties may terminate the EA; and
•
the EA must be in a form suitable for registration.
• The REA itself must specify the circumstances in which a
party may terminate it.
• In addition, a party to an REA may apply to the Labour Court
to have it cancelled or have its terms varied, either by
agreement of all parties or, failing agreement, following a
dispute resolution process and the involvement of the
WRC. – Ss 9 and 10
• A party to an REA may apply to the Labour Court for an
interpretation of it or its application to any person, and the
civil courts must have regard to any such interpretation if a
dispute regarding the REA comes before them and may
refer an REA to the Labour Court for interpretation. S 12
• Any REA will apply to every employer of the class, type or group to which it is expressed to
apply and to their workers party to the REA. If the contract of employment of an employee to
whom an REA relates provides for a lower rate of remuneration, or less favourable conditions
than those set out in the REA, the more favourable REA provisions will be substituted for the
equivalent provisions in the contract of employment. S11
• The 2015 Act requires employers to whom an REA applies to keep records at the place of work
for 3 years to show compliance with the REA. An employer who fails to comply with this
provision shall be guilty of an offence.
• A worker in respect of whom an infringement took place may present a complaint to a WRC
Adjudication Officer, from whose decision there is an appeal to the Labour Court. The
Adjudication Officer may direct compliance and award compensation of up to two years of
remuneration. 8 Ss 22 and 23
• Labour Court Register of Employment Agreements.
• Further information is available on the Labour Court website
regarding the Labour Court Register of Employment Agreements
• Joint Industrial Councils
• (JICs) are voluntary negotiating bodies for particular industries or
parts of industries that are representative of employers and trade
unions.
• A JIC provided that it fulfils certain conditions, may register with the
Labour Court as a Joint Industrial Council under the Industrial
Relations Acts.
• The rules of JIC’s must provide for the referral of disputes to the
Council for consideration before resort is made to industrial action.
• A registered JIC may request the Labour Court to appoint a
chairperson and secretary to the Council.
• Sectoral Employment Orders (SEOs)
• SEOs are orders made by the Minister for Jobs, Enterprise and Innovation on the recommendation of
the Labour Court and approved by resolution of both Houses of the Oireachtas, which set out the
minimum rates of remuneration and the minimum pension and sick pay entitlements of workers of
a particular class, type or group within a specified economic sector.
• They are similar to REA’s but their application is not confined to employees of the employer(s) party
to them and their scope is confined to pay, sick pay and pensions.
• The SEO regime partially replaces the pre 2015 Act REA regime that was declared unconstitutional in
2013.
• SEOs will apply to all workers and employers within the relevant sector but the crucial difference is
that they will be contained in a Ministerial order approved by both Houses of the Oireachtas, as
opposed to an agreement between private parties registered by the Labour Court.
• A trade union of workers who substantially represent workers of a particular class, type or group in an economic
sector or a trade union of employers may apply to the Labour Court to have the Court review the remuneration
and sick pay and pension entitlements of workers of that class, type or group within that sector. (S14) A number of
statutory conditions must be satisfied before the Court will engage in such a review. If the Labour Court deems it
appropriate after carrying out its review, the Court can make a recommendation to the Minister with regard to
rates of pay, sick pay and pension schemes in that sector, and in so doing it must have regard to certain
matters (s14.2) and it must be satisfied with regard to certain matters. (S16.2) If the Minister is satisfied that the
Labour Court has complied with the Act, the Minister must then make the SEO. Ss 15,16
• The SEO regime has a number of safeguards for employers as follows:
• (a)before the Labour Court can examine an economic sector, it must publish notice of the intended examination
and hear representations from any interested parties from that sector;
• (b)prior to making a recommendation for an SEO, the Labour Court must consider its effect on employment and
competitiveness levels within the sector; and
• (c)an employer may apply for an exemption from a specified SEO, although such exemptions are subject to
onerous statutory controls. (Ss15,16,17)
• An SEO will apply to every worker of the class, type or group in the economic sector
to which it is expressed to apply and to their employers. If the contract of
employment of a worker to whom an SEO relates provides for a lower rate of
remuneration or less beneficial sick pay or pension entitlements than those set out in
that SEO, the more favourable SEO provisions will be substituted for the equivalent
provisions in the contract of employment S19
• In addition, an employer must not penalise an employee for relying on their rights in
relation to the SEO system. S20
• The 2015 Act requires employers to whom an SEO applies to keep records for 3 years
at the place of work to show compliance with the SEO.
• An employee who fails to do so shall be guilty of an offence. S22
• A failure on the part of an employer to comply with the terms of an SEO can be the
subject of a complaint to an Adjudication Officer (and an appeal to the Labour Court)
and result in an award of up to two years of remuneration together with an order
directing the employer to comply with its obligations thereunder. S23
• Sectoral Employment Orders
• “Sectoral Employment Orders (SEO) covering rates of pay, sick pay, and
pensions across the construction sector and the mechanical engineering
sector were signed into legislation following acceptance by the Minister of
State at the Department of Enterprise, Trade and Employment, of
recommendations from the Labour Court.
• The SEOs place a legally binding floor on rates and obligations in the
sectors throughout the country.” Per WRC (2021) available at
• Sectoral Employment Orders – Workplace Relations Commission accessed on 24/9/21
1.
S.I. No. 251/2019 – Sectoral Employment Order (Electrical Contracting Sector) 2019 (the “Electrical Sector SEO”);
2.
S.I. No. 234/2019 – Sectoral Employment Order (Construction Sector) 2019 (the “Construction Sector SEO”); and
3.
S.I. No. 59/2018 – Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 (the “Mechanical Engineering Building Services Contracting Sector SEO”).
• Construction Sector
• Mechanical Engineering Building Services Contracting Sector
Náisiúnta Leictreach Contraitheoir Eireann Cuideachta Faoi Theorainn Ráthaíochta v The
Labour Court, The Minister For Business Enterprise And Innovation Ireland, The Attorney
General, 2019 No. 280 J.R. Available here.
•
NECI sought to challenge the validity of the Sectoral Employment Order (Electrical Contracting Sector) 2019 and Chapter 3 of the
Industrial Relations (Amendment) Act 2015 (the “2015 Act”) on the basis that they were invalid having regard to Article 15.2.1° of the
Constitution.
•
The High Court decided that the 2015 Act did not contain sufficient principles and policies in order to guide the “very broad discretion” conferred
upon the Minister, and, indirectly, upon the Labour Court. The Court determined that the statutory language was too imprecise to provide meaningful
guidance to the Labour Court. In addition, the 2015 Act failed to provide sufficient guidance to the Labour Court and the Minister in terms of the
principles to be applied in determining the economic sector. Furthermore, the Minister’s role was too limited to represent a meaningful safeguard
against a breach of Article 15.2.1° of the Constitution.
•
The Court pointed out that imposing mandatory terms and conditions of employment across an entire economic sector requires making difficult
policy decisions, with significant consequences, particularly given that the interests of the main stakeholders (employers and workers) may not be
aligned.
•
In conclusion, the Court decided that Chapter 3 of the 2015 Act “involves a standard-less delegation of law making to the Minister, and one which
would be almost impossible to challenge by way of judicial review.” On this basis, the Court held that Chapter 3 of the 2015 was invalid by reference
to Article 15.2.1° of the Constitution.
•
https://www.arthurcox.com/knowledge/high-court-finds-sectoral-employment-orders-and-relevant-industrial-relations-legislation-areunconstitutional/
•
High Court Finds Sectoral Employment Orders and Relevant Industrial Relations Legislation are Unconstitutional – Arthur Cox LLP
The fact that the High Court has declared certain sections of the
Industrial Relations (Amendment) Act 2015 (the “2015 Act”) to be
unconstitutional, thereby making sectoral employment orders invalid
has implications for employers and workers in the electrical,
mechanical engineering, and construction sectors.
The decision also has implications for outstanding claims made by
contractors under construction contracts for the additional costs
incurred by them in complying with sectoral employment orders.
Employment Law 2021
Employment contracts
Terms and Conditions =
1
INDEX
Resources
Employment contracts
Terms of Employment
Terms of Employment Information Acts 1994 as amended
Protection of Employees (Part-Time Work) Act 2001
Protection of Employees (Fixed Term) Work Act 2003
The Protection of Employees (Temporary Agency Work) Act, 2012
Minimum Notice and Terms of Employment Acts 1973-2005
The Organisation of Working Time Act, 1997
P3
P4
P12
P17
P25
P30
P34
P36
P38
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Resources
“Employment Law”, 2nd edition (Author: Dorothy Donovan). Round Hall
“Essentials of Irish Labour” Law 3rd edition (Author: M.Faulker). Clarius Press
WRC 2021 “Guide to Employment Labour and Equality Law” available at
guide-to-employment-equality-and-labour-law-final-june-2016-.pdf
(workplacerelations.ie) accessed/21 23/9
https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/e
mployment_rights_and_duties/employment_law_update.html
Courts (citizensinformation.ie)
How the Courts Work | The Courts Service of Ireland
Judgments | The Courts Service of Ireland
British and Irish Legal Information Institute (bailii.org)
Home – Workplace Relations Commission
Information Guides & Booklets – WRC
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Sample Terms of Employment ++
Sample Day 5 Statement ++
Guide to Employment, Labour and Equality Law – (English) – (Gaeilge)
Employment Law Explained – (English) – (Gaeilge) ++
Guide to the Workplace Relations Commission (WRC) – (English) –
Information for Practitioners/Representatives – (English) – (Gaeilge)
Guide to the Decisions and Determinations Database
Procedures in the Investigation and Adjudication of Employment and Equality
Complaints
Guidance Note for a WRC Adjudication Hearing
WRC Postponement Process Guidelines
Industrial Relations (Amendment) Act 2015 Rules.pdf
Equal Status Acts Guide
Employment Rights of Domestic Workers in Ireland – (English) –
Employment Rights of Seasonal Workers in Ireland
Employers Guide to Inspections – (English) – (Gaeilge)
Inspection – Sample Employee Questionnaire
Employers’ Record Log
WRC Exhibition Pack
Guidelines for Employees, Employers & Practitioners Appearing before the
Employment Appeals Tribunal – (English) – (Gaeilge)
Employee Decision Notes (EAT) – (English) – (Gaeilge)
Employer Decision Notes (EAT) – (English) – (Gaeilge)
Guide to the Equal Status Act for Respondent
Guide to the Equal Status Act for Complainant
3
3.1 EMPLOYMENT CONTRACTS
3.1.1. The Formation of Contracts of Employment
An employment contract like any other contract contains the essential elements of a
contract:
Offer, acceptance, intention to create legal relations and consideration.
It is created by an express agreement between the employer and employee.
This agreement may be made orally or expressed in writing.
Despite the importance of the employment contract, the legal rules as to its formation are
vague and it is modified by considerable amounts of legislation and case law regardless of
the wishes of the parties.
3.1.2. Differentiate between Contracts of Employment and Contracts for
Services
Before examining the contract, it is important to distinguish between contracts of
employment (i.e. of service) and contracts for services. An employee is someone who is
employed under a contract of employment while an independent contractor or self
employed person is employed under a contract for services.
For Example:
Contracts of Employment
Contracts for Services
Chauffeur
Taxi driver
Staff reporter with a newspaper
Freelance journalist
It is important to distinguish between both types of contract because:
•
only an employee is entitled to the benefit of employment legislation e.g. Unfair
Dismissals Acts 1977-2015.
•
in general an employer will only be held vicariously liable for acts of his employees
and not independent contractors .
•
taxation.- employees are taxed under the PAYE system
•
social welfare. – employees have a broader range of social Welfare Benefits as the
PRSI classification is different.
+
employees are preferential creditors in company insolvency
If a dispute arises for any of the above reasons it will be necessary for the courts to decide
which contract exists.
“The courts look at the realities of the relationship in order to determine whether the
relationship of employer and employee actually exists regardless of how the parties
describe themselves” per In re Sunday Tribune Ltd [1984] I.R. 505 Per Carroll J
4
In order to differentiate between contracts of and for service the courts have devised
a number of tests.
1.
The Control Test
Whether the employer can control not only what is done but how it is done.
Yewens v Noakes, (1880) “A servant is a person subject to the command of his master in
the manner in which he shall do his work.” (Bramwell L.J)
In McAuliffe -v- Minister for Social Welfare, [1995] 1 ILRM 189, the High Court stated
that the control test was the correct test in determining which contract exists. In this case,
Mr Plunkett and Mr Weir were engaged by Mr McAuliffe for 6/7 days and 5 days per
week respectively to deliver newspapers in the province of Leinster. They were paid
monthly against invoices submitted by them to the appellant. They each owned their own
car and were responsible for all outgoings including tax, insurance, repairs, fuel and
depreciation in respect of them. They could get others to do their deliveries if they were
unavailable and they were each responsible for paying the substitute drivers. They were
free to carry goods for any other persons and were registered as self-employed for the
purposes of tax. When Mr McAuliffe terminated their contracts they sought to sue under
the Unfair Dismissals Act 1977-2001 claiming to be employees. Barr J noted that Mr
McAuliffe had two options, firstly, to employ an independent haulage company to perform
the service for him or secondly he could control the operation himself by providing
vehicles and personnel from within his organisation. In this case, the appellant had chosen
the first option and so Mr Plunkett and Mr Weir were not employees but rather
independent contractors working under a contract for services.
The Control Test though is not that helpful in some situations Eg Health
Authorities/Hospitals and Consultants/Surgeons – There is no question of an employer
controlling how a surgeon operates
O’Donovan v Cork Co Co – [1967] IR 173 SCT which involved an action against the
defendant council for the alleged negligence of a surgeon and an anaesthesist. The
defendant council while denying negligence did not even contest the proposition it would
be vicariously liableif negligence were proved on the part of the surgeon/anaesthesist.
SCT criticised the control test saying that in such a situation the er would not possibly be
able to control the activities of its ee yet that did not mean the worker was not employed
under a contract of service.
2.
The Integration Test
This test provides that a person employed under a contract of employment is usually
integrated into the business and their work forms an integral part of it. In contracts for
services, the worker is not integrated into the business but is merely ancillary to it.
In Re Sunday Tribune Limited [1984] IR 505. Three journalists sought to prove they were
employees in the winding up of the company. The first claimant was a part time sub-editor
of the newspaper with two shifts per week. The second claimant was a regular columnist
with a fixed fee per week for a weekly column and was required to attend meetings
throughout the year. The final claimant was a regular contributor of articles when
specifically commissioned to do so for a fixed fee. All the journalists worked for other
companies. The High Court held that the first and second claimants were employees
working under contracts of employment while the third claimant was an independent
5
contractor. Carroll J specifically applied the integration test when assessing the nature of
the contract between the regular columnist (Mary Holland) and the newspaper:
In Mary Holland’s case, I am of opinion that her employment was an integral part of the
business of the newspaper. The column was to run for 50 of the 52 weeks of the year. She
took part in editorial conferences. There was provision for the equivalent of holiday pay, I
am satisfied that she was employed under a contract of service.
In the case of the part-time sub-editor, his employment was held to satisfy the simple test
of control by the employer. He worked at specified times under the guidance of the chief
sub-editor and to his instructions. The fact that he worked part-time did not change the
nature of his employment.
Thus significant intergration into the employer’s business may make up for a lack of
detailed control but the courts have not spelt out in general terms though what they mean
by integration.
3.
The Mixed Test
In this test, the court examines all aspects of the relationship not just the control element.
The approach of the court in applying this test was first explained by Kenna J in the UK in
Ready Mixed Concrete Ltd v Minister for Pensions [1968] 2 QB 497
This case held that for a contract of service to exist, three conditions must be fulfilled:
a.
there must be an obligation on the person to provide his own work and skill in return
for a wage or other remuneration;
b. there must be a ‘sufficient’ degree of control by the employer;
c.
the other provisions of the contract must not be inconsistent with its being a contract
of service.
Facts: the case concerned the appellant company’s liability for social security contributions of their
worker which arose only if they had contracts of service. The worker who drove ready mixed concrete
lorries, was buying his lorry on hire purchase from the company was found to be employed under a
contract for service, not a contract of service
4 The enterprise test as to whether a person who has been engaged to perform certain
work performs it “as a person in business on their own account” was considered among
other matters. This fundamental test was drawn from the UK case of Market Investigations
Ltd v Minister of Social Security – [1969] QB 173
The enterprise test in that case was a mixed test that asked the following question:
Does the person doing the work:
 assume any responsibility for investment and management in the business or
 otherwise take any financial risk or
 provide his own tools or equipment or
 ability to provide substitute workers
 have the opportunity to profit from sound management in the performance of
his/her task
 regularity and method of payment
Tierney v An Post [1996] ELR 293
A post master was held to be an independent contractor as he
-provided his own premises,
-was entitled to hire staff and
-he undertook the risk of whether he made a profit or not.
6
Phelan v Coillte Teo [1993] 1 IR 1
The Plaintiff was a heavy machine operator working for Coillte. In August 1987
the machine he was working on broke down. A Coillte engineer instructed a Mr
Carwood a welder to repair the machine and the plaintiff was instructed to assist
him. An accident occurred and the plaintiff sustained personal injuries. It was
conceded that Mr Carwood was negligent – the issue was whether he was an
employee of Coillte or an independent contractor. If he was an employee Coillte
would be vicariously liable for his negligence in the course of employment.
Mr Carwood worked full time for Coillte working in the State where-ever
machinery required attention. He would be told by a supervisor where to go, what
work was required. He was paid an agreed price per hour with a mileage allowance
for his own vehicle . He would provide his own tools and equipment. A new hourly
rate was negotiated each year. He furnished invoices which were paid by accounts
including VAT, there were no PAYE or PRSI deductions by Coillte. Sometimes he
met a Coilite engineer on site who gave him instructions what to do. Most times he
would be asked by a supervisor/engineer to attend to a machine at a particular
forest he would go and fix it. He provided his own labour and had no employees.
Sometimes Coillte would direct one of its employees to assist him, as in this case.
99% of his work was for Coillte. His contract with Coillte ended when Coillte
decided to hire machinery and not have there own.
Contract for service factors
He provided own tools and equipment but many employees like carpenters and
mechanics do so.
The factors which indicated contract for service were financial – mode of pay, no
pension, no holiday pay.”—an employer and a full time employee decide to
structure the relationship in such a way that is most cost effective for both but in so
doing they do not interfere with the work aspect of the agreement which has all the
hallmarks of a contract of service it would be quite unreal and unjust to hold that
the rights of an injured person would be thereby fundamentally altered — to render
the employer free from vicarious liability”.
Barr J was satisfied looking at it from the point of vicariously liability that if in
practical terms the degree of control exercisable by Coillte over Mr Carwood was
one that you would expect a master to have over a tradesman servant then the
employer is vicariously liable even if Mr Carwood was an independent contractor.
Barr J said there was no hard and fast rule each case must be considered on its
facts. He referred to cases on control.
Barr J said a skilled tradesman rarely requires instruction on how to do his work
though he may be told what to do.
5 Mutuality of Obligations test – Minister for Agriculture and Food v Barry [2008]
IEHC 216 [2009] 1 IR 215
Five temporary veterinary inspectors were held by the EAT to be employees of the
Minister for Agriculture and entitled to Redundancy Payments following the closure of
the Galtee Meats Plant at Mitchelstown, County Cork. Edwards J on appeal to the High
court overturned the finding and said Mutuality of obligation is required in a
contract of service i.e
7
“[obligation] on the employer to provide work for the employee and on the employee to
perform work for the employer. “The court agreed with the department’s view that it had
no control over the level of work available to the inspectors, as this was within Galtee’s
control.
See discussion in Barry case https://www.bailii.org/ie/cases/IEHC/2008/H216.html
6 The Reality Test – What was the real arrangement between the parties on a day to day
basis. per the Supreme Court in Henry Denny v Minister for Social Welfare [1998] 1 IR 34:
Facts:
In 1988 Ms. Mahon, was on a panel from which food demonstrators were selected by
Henry Denny & Co from time to time to merchandise products in different shops. Ms.
Mahon would be notified three or four days before the date of a proposed in -store
demonstration and subject to her availability , it would be agreed that she would
demonstrate one of Denny’s food products in a particular retail store. The terms upon
which she was engaged were set out on a yearly basis in a written agreement which stated
that she was an independent contractor and responsible for her own tax and her fees were
dpaid by Denny on the production of fortnightly invoices. Ms. Mahon was supplied with a
coat displaying the company’s logo and also a demonstration stand. Although she was not
supervised by Denny during working hours her contract required her to abide by the
directions and regulations of Denny as well as to attend punctually at the location where
the demonstration was taking place.
In May 1992 a Deciding Officer from the Department of Social Welfare determined that
Ms. Mahon held a contract of service and was insurable under Social Welfare Acts. Denny
appealed. The Supreme Court confirmed that the Appeals Officer was correct in
considering “the facts or realities of the situation on the ground” i.e. to look at and
beyond the written contract to arrive at the totality of the relationship.
“-while each case must be determined in the light of its own particular facts and
circumstances,
-in general a person will be regarded as providing his or her services under a contract of
service —- where he or she is performing those services for another person and not for
himself or herself.
-The degree of control exercised over how the work is to be performed, although a factor
to be taken into account, is not decisive.
-The inference that the person is engaged in business on his or her own account can be
more readily drawn where he or she employs others to assist in the business and where the
profit which he or she derives from the business is dependent on the efficiency with which
it is conducted by him or her“. (Keane J)
Gilligan J also supported the application of the reality test in Brightwater Selection
(Ireland) Limited v Minister for Social and Family Affairs [2011] IEHC 510 stating :
“[i]t is clear from a perusal of the authorities that no definitive test has been set out by the
courts to be used in the context of determining whether a person is engaged under a
contract of employment and it follows that a court or tribunal, in making such
determination, should have regard to all relevant considerations
8
Karshan (Midlands Ltd) T/a Dominos Pizza v Revenue Commissioners [2019] IEHC 894
Facts
The Revenue Commissioners had decided that the delivery drivers delivering pizza for
Domino’s Pizza were employees for tax purposes. The company insisted they were selfemployed and responsible for their own tax affairs. Dominos appealed the decision of the
Tax Appeal Commissioners to the High Court on a number of grounds, including that the
Revenue Commissioners had erred in law in applying the following principles to the case:
1. Mutuality of obligation-that is, does the company have to provide work and does
the delivery driver have to accept it? The company argued that the delivery drivers
were not obliged to work, they could pick and choose their jobs, and therefore the
necessary mutuality of obligation between the parties was absent.
o
Substitution – if you are allowed to substitute someone else to do your job or carry
out duties you are not an employee, you are self employed
o
Integration- the company argued that they were an “accessory” to the business, not
integral
o
Contractual terms-the company argued that the Revenue Commissioners failed to
place sufficient weight on the actual terms and conditions between the parties and
placed too much emphasis on how the contract was actually operated
o
High Court Decision.
The High Court found
1-that once the drivers filled out an availability sheet they had an obligation to be available
an thus there was mutuality of obligation.
2 that the substitution clause only allowed the driver to nominate a replacement who would
then be approved and paid by Dominos. This was held not to be true substitution.
3 that the drivers were integral to and played a vital role in the business.
4 It also noted the drivers were obliged to wear uniforms and take orders from Dominos,
not the general public or end user.
5 that the Revenue Commissioners not made a mistake in looking at how the contract was
actually performed, as opposed to the terms and conditions set out in the written contract.
And held that the delivery drivers were employees for tax purposes having stated
One of the most important points to take from this case is the High Court’s observation
that there is “no comprehensive statutory or common law definition” of who is selfemployed and who is an employee. For this reason each case will be decided on its
particular facts and circumstances.
9
It also noted there was no box ticking exercise that you could complete to answer the
question; each case must be looked at and a close scrutiny of the relationships between the
parties must be carried out to be sure of the position.
This has important implications for employers who need to be aware of the emphasis that
will be placed on the actual reality of the relationship between the parties, and not just on
what is contained in the written contract.
Read the full decision in Karshan (Midlands) Limited (t/a Dominos Pizza) v Revenue
Commissioners [2019] IEHC 894
It is an issue that has previously been addressed in the UK courts in cases involving Uber
and Deliveroo delivery drivers. But this High Court case involving Karshan (Midlands)
Limited (t/a Domino’s Pizza) v Revenue Commissioners [2019] IEHC 894 was the first
time an Irish court had to decide the issue.
Both the Payment of Wages Act 1991 and the Minimum Wage Act 2000 apply to contracts
where an individual has agreed with another to do or perform personally any work or
service for a third person whether or not they are a party to the contract .whose status is not
that of client or customer of any profession or business.
A wider definition also applies in relation to the Employment Equality Act 1998 (as
amended in 2004 by s 3 of the Equality Act 2004) which includes contracts whereby ‘‘an
individual agrees with another person personally to execute any work or service for that
person. In Case C-256/01 Allonby v Accrington & Rossendale College and Others
[2004] IRLR 224 the ECJ held that the term ‘‘worker’’ in relation to equal pay under
Article 141EC had to have an EU meaning and could not be defined by individual Member
States’ legislation. A worker, therefore, in the context of EU equal pay law means ‘‘a
person who, for a certain period of time, performs services for and under the direction of
another person in return for which he receives remuneration’’ but this does not include
‘‘independent providers of services who are not in a relationship of subordination with the
person who receives the services’’ (paras 67-68).
See article
https://www.claruspress.ie/wp-content/uploads/piel_sample.pdf
and
The Code of practice on determining employment status July 2021
https://www.gov.ie/pdf/?file=https://assets.gov.ie/34185/fcfac49276914907b939f64fad110ae8.pdf#page=null
This Code of Practice was first prepared in 2001 by the Employment Status Group under
the Programme for Prosperity and Fairness. It was updated in 2007 by the Hidden
Economy Monitoring Group under the Towards 2016 Social Partnership Agreement.
And in 2021 by an interdepartmental working group comprising the Department of
10
Social Protection, the Office of the Revenue Commissioners and the Workplace Relations
Commission (WRC). It is intended to be a ‘living document’ which will continue to be
updated to reflect future, relevant changes in the labour market, relevant legislation and
caselaw.
The Code aims to be of benefit to employers, employees, independent contractors and
legal, financial and HR professionals. It is also aimed at investigators, decision-makers and
adjudicators in the Department of Social Protection, the Office of the
Revenue Commissioners, the WRC, their
respective appeals bodies, and the courts.
The purpose of the code of practice on determining employment status as stated therein is
to provide a clear understanding of employment status, taking into account current labour
market practices and developments in legislation and caselaw
.
11
Terms of Employment.
3.2 Express and Implied Terms
Express Terms
In every contract of employment there are terms. These may be express terms or implied
terms. Express terms are expressly referred to in the contract of employment. The express
terms of the employment contract are the terms actually agreed by the parties i.e said in an
oral agreement [there is no requirement that a contract of employment be in writing Carey
v Independent Newspapers [2003] IR 52 , or written down in a document or documents
Whereas a contract may be oral Statute – The Minimum Notice and Terms of Employment
Act 1973 and the Terms of Employment Information Act 1994 require a written statement
of terms be given within 2 months and since March 2019 certain terms must be given in
writing within 5 days.
A contract of employment may be contained in more than one documents e.g. some terms
may be contained in a Collective Agreement & incorporated into individual contracts of
employment
Certain terms are prohibited by law – such as terms that purport to exclude the application
of protective legislation.
An example of an express clause is a ‘restraint of trade clause’ which seeks to restrain a
person from working with another employer either during the course of his employment or
after. These clauses are contrary to public policy and are void unless they are reasonable
in breadth and duration and in the interests of the public.
Where a difference arises between the parties regarding a term of the contract the question
is what is the true construction is a question of law.
Because it would be difficult to include every matter that might arise during the course of
work, some terms are implied into the contract.
General rule: Express terms must take precedence over implied terms
Implied Terms
Terms may be implied into the contract through (A) common law- (B) the Constitution (C)
by the Court to give business efficacy to the contract, (D) Legislation (E) Custom and
Practice (F) collective bargaining.
12
A Some terms implied by common law/case law include the following:
Employees implied duties at common law:
(1)Duty to exercise skill & care
– Each employee warrants that he has reasonable skills for the work he has
agreed to undertake:
– Harmer v Cornelius (1858):
– “When a skilled labourer, artisan or artist is employed, there is on his part
an implied warranty that he is of skill reasonably competent to the task he
undertakes …. Thus, if an apothecary, a watchmaker, or an attorney be
employed for reward, they each impliedly undertake to possess and exercise
reasonable skill in their several arts … An express promise or express
representation in the particular case is not necessary.”
–
(2)Duty of fidelity & honesty- in modern terms the duty of trust and confidence.
Duty to give faithful and honest service- duty to be loyal to the employer
during the course of his employment. The employee must account and care
for the employer’s property, information, money etc. This duty excludes the
taking of bribes and working for rival companies.
– i.e. it is a duty not to cheat employer, abuse position by secretly working
for a competitor or disclosing confidential information.
–
(3)Duty to obey lawful orders
– In O’Donoghue -v- Carroll Group Distributors Ltd the EAT held that an
employee is under a duty to obey reasonable orders. Here, the claimant
refused to remove ‘no smoking’ signs from her car despite being asked to
do so as it was causing the company serious embarrassment. The
claimant’s dismissal for failure to obey her employer’s instructions was
held to be lawful in the circumstances. {Note this case was pre the present
smoking ban}.
–
–
(4)Co-operation with organizational objectives
Employer’s implied duties at common Law are
(1)Duty to provide a safe place of work, safe system, proper equipment, competent staffSee Johnstone v Bloomsbury Health Authority[1991] IRLR 118 supra
(2)Limited Duty to provide work –In general Employer has no duty to provide work once
employee continues to be paid.
“Provided I pay my cook her wages regularly. She cannot complain if I choose to
take any or all of my meals out.” per Asquith J. in Collier v Sunday Referee
Publishing Co. Ltd [1940] 2 KB 647)
EXCEPTIONS
1
If employee’s pay depends upon it- e.g. where employee paid on
commission or piece-work basis. (Devonald v Rosser & Sons [1906] 2KB 728)
2
If employee needs to “work” to maintain a skill – (William
Hill
Organisation Ltd v Tucker [1999] ICR 291)
3
Where the publicity generated may be as important for the employee as the
wages paid (Marbe v George Edwards (Daly Theatre) Ltd [1928] 1 KB 269
13
(3)Duty to pay wages Duty to pay agreed wage.
The appropriate wage must be paid where wages have not been specificially
agreed McEvoy v Moore (1902)
(4)Duty to indemnify the worker against loss or damage
(5) Duty to treat employees with trust and confidence**
• This is implied into all contracts of employment.
Per Lord Stein in Malik v. Bank of Credit and Commerce International [1997] 3
All E.R. 1
• “ The implied obligation extends to any conduct by the employer likely to
destroy or seriously damage the relationship of trust and confidence between
employer and employee.”
•
– Eg. Failure to support ees complaining of abuse by co-employees/customers
– Bracebridge v. Derby [1990] I.R.L.R. 3
– Employee complained to supervisor that indecently assaulted by 2 coemployees – they denied it and er took no further action.
B Terms implied by the Constitution
Right to fair procedures
•
•
•
•
•
– where there are no agreed procedures the courts imply minimum standards where
dismissal for misconduct
• Audi alteram parterm
• Nemo iudex in causa sua
In Glover v BLN the Supreme Court held these principles have constitutional
underpinnings and that public policy dicates that agreements that provide for the
machinery for taking decision which may affect rights or impose liabilities should
be construed as providing for fair procedures.
In public service job situations an action can be taken in judicial review for breach
of fair procedures.
See State (Gleeson) v Min for Defence ; State (Garvey) v Ireland
In Orr v Zomax 2004 –Carroll J – It is not open to an ee to argue that principles
governing the fairness of dismissals under the statutory scheme should be imported
into the common law but held that in cases involving misconduct the principles of
natural justice would apply.
C Terms implied by the court on a case by case basis in order to give business efficacy
to a particular agreement
• Shirlaws v Southern Foundaries Foundaries Ltd (CA) [1939] 2 KB 206
• re a company’s contract to appoint the plaintiff MD for 10 years
• Were there implied terms that:– (i) that he would not be removed as director and that
– (ii) the company’s articles would not be altered to have him removed — for
10 years.
– Shirlaws case went to the H of L and implied term (i) was upheld.
• MacKinnon LJ proposed the so called “officious bystander” test of implied terms ie
“prima facie that which in any contract is left to be implied and need not be
expressed is something so obvious that it goes without saying so, that if while the
parties were making their bargain an officious bystander were to suggest express
provision for it in their agreement they would testily suppress him with a common
“oh of course.”
14
D Terms Implied by Legislation
• In Ireland, there are many pieces of legislation that are
•
implied into every contract of employment. The rights implied from the
legislation are only applicable to certain employees depending on their status and
(sometimes) length of service. Terms implied by Statute include:• The parties usually agree notice periods, absent same the Court will require a
reasonably period subject to the statutory minimum. As set out in the Minimum
Notice prior to termination pursuant to The Minimum Notice and Terms and
Terms of Employment Act 1973
• Max working time, annual leave, public holidays, daily and weekly rest breaks –
per The Organisation of Working Time Act 1997
• Salary is negotiable between the parties but legislation provides for minimum pay – The National Minimum Wage Act 2000, and the methods of payment and
allowable deductions are regulated by the Payment of Wages Act 1991
• The right not to be unfairly dismissed
• The right to redundancy payments in the event that employment is terminated in a
situation of redundancy.
• The right to equality [S30 of the Employment Equality Act 1998 inserts a nondiscrimination into every contract of employment not already containing it]
• The right to safety from sexual harassment
E Terms may be implied by custom or practice – In O’Reilly v Irish Press [1937] ILTR
194 it was held that for a custom to be implied into a contract it must be:• “— so notorious, well known and acquiseced in that in the absence of agreement in
writing it is to be taken as one of the terms of the contract between the parties.”
• Such rights include the right to suspend, the right to sick pay, selection for
redundancy etc
• In DP Refinery (Westernport) Pty Ltd v Shire Hastings [1978] 52 AJLR 43 the
court set out the test that will normally be applied before a term may be implied
into a contract as follows
• (a) the term must be reasonable and equitable
• (b) it must be necessary to give business efficacy to the contract, so no term
will be required if the contract is effective without it,
• (c) it must be so obvious that it goes without saying
• (d) it must be capable of clear expression and
• (e) it must not contradict any express term.
F Terms implied by collective bargaining
• Under the privity of contract principle a person who is not a party (privy) to a
contract cannot benefit from it or be bound by it ie cannot enjoy the benefits or
suffer the burdens of it.
• 4 main ways to get around the privity rule
• i) where the trade union acts as an agent on behalf of the employee
• (ii) where the employee agrees in advance to be bound by a collective agreement Incorporation of a specific term in the contract of employment whereby an
employee agrees to the terms of a collective agreement becoming part of the
contract of employment.
• Here, the employee gives advance consent to being bound by whatever terms may
be negotiated between the emp…