One of the features which distinguishes contracts of employment in Ireland from contracts or employment in certain other jurisdictions is the extent to which they are regulated by statute. The employment relationship is regulated from its inception by various pieces of legislation.

The Terms of Employment (Information) Act 1994 - 2001 provides that an employer must within two months of the commencement of employment, provide the employee with a written statement of the terms and conditions of his/her employment. These terms and conditions make up the employee's Contract of Employment.

This Contract of Employment should be signed on behalf of the employer and should also be signed by the employee. It should contain all the essential terms attaching to the employment. It should set out the date of commencement of the employment, to whom the individual will report, the place of employment, salary and all other benefits, hours of work and the nature of the position. It should also deal with issues such as holidays, sickness procedure and maternity procedures (where applicable). It should also set out the notice required to be given by the employee and the employer in the event that either party should wish to terminate the Contract of Employment.

The notice which is required to be given by the employer/employee in the event the employment agreement is being terminated by either party may not be less than the notice period provided for under the Minimum Notice and Terms of Employment Acts, 1973-2001. The notice entitlement of the employee under this legislation runs, on a sliding scale, from a minimum of one weeks notice, where the employee has 13 weeks service up to a maximum of eight weeks notice where an employee has 15 years or more service. The employee is required to give one weeks notice to the employer under the above legislation.

Employees must also be supplied within 28 days of commencing employment with a document setting out the procedure which an employer will follow if the employee is to be dismissed.

An employee should be advised of the place of work. However, attempts to relocate employees at a distance from their original employment or to unilaterally alter their job position should be treated with caution as in certain circumstances an employee may claim that he has been constructively dismissed.

Irish employment legislation regulates a number of other areas which are relevant to the contract of employment, to include minimum breaks and rest periods, minimum weekly working hours, restrictions on night work and additional payment for working on Sundays.

Employers are not obliged to enter into agreements with, or negotiate with trade unions in relation to their employees. Irish employees have a right to join a trade union if they wish and at the same time a right not to join a trade union.

Irish and EU safety, health and welfare legislation has become increasingly important for employers. Employers must do all that is reasonably practical to ensure that any risk to the safety, health and welfare of an employee is avoided. Employers must have a safety statement identifying all hazards existing in the workplace and the procedures in place for avoiding risks from such hazards arising for employees.

All employers should have in place and enforce a suitable code of conduct to deal with allegations of bullying, harassment and sexual harassment in order to avoid liability in respect of such conduct. Employers should have an established procedure permitting employees the opportunity to raise complaints and the procedure for investigating any such complaints. Four Codes of Practice exist in respect of bullying, harassment and sexual harassment in Ireland.

The Unfair Dismissals Acts 1977 - 2007 provide redress to employees who have been dismissed from their employment. Section 6(1) provides that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Acts further provide however that a dismissal shall be deemed " not to be an unfair dismissal, if it results wholly or mainly from" one of a number of specified grounds including capacity, competence, conduct and redundancy.

Employees enjoy a high level of protection from the courts and other regulatory bodies and it has been shown on many occasions that it is not enough for an employer to show that he had fair grounds to dismiss an employee. The employer must show that he acted reasonably and treated the employee fairly (by following fair procedures) prior to making the decision to terminate the employee's employment.

Employers must have a disciplinary procedure setting out the steps to be followed by the employer when dealing with issues of concern such as conduct or performance. Any such procedure must be fair and permit the employer to bring issues of concern to the attention of the employee and for the employee to defend such issues before any decision is made as to disciplinary action.

Dismissal should generally only occur after fair procedures have been applied which would include warning the employee and granting the employee an opportunity to improve. Failure to provide fair procedures and to have good grounds for dismissal may lead to a finding of unfair dismissal against the employer. A statutory code of practice is in place in Ireland in respect of disciplinary procedures.

An employee must have 12 months service in order to avail of the protection afforded by the Acts save in certain circumstances.

The Redundancy Payment Acts 1977-2007 provide for the payment of compensation by employers to employees who are dismissed by reason of redundancy provided relevant conditions are met by the employee. An employer is usually entitled to reclaim 60% of the statutory redundancy payment from a redundancy fund administered by the State. An employee will be regarded as dismissed by reason of redundancy in circumstances such as:

• when the employer has ceased to conduct the business in the place where the employee was employed;
  
  
• when the requirements of the business have changed;
  
  
• when the business requires fewer employees;
  
  
• when the work now requires someone with different qualifications.

The redundancy lump sum payment to which a qualifying employee is entitled to is calculated based on the number of years the employee has been employed.

An employee must have at least 104 weeks continuous service with the employer to qualify for a statutory redundancy payment.

The Employment Equality Acts 1998 to 2007 ("the Acts") prohibit discrimination based on the following nine distinct grounds:

1. gender;
2. marital status;
3. family status;
4. sexual orientation;
5. age;
6. disability;
7. race;
8. religion; or
9. membership of the travelling community.

In general, an employer is held responsible for the actions of employees arising out of and in the course of their employment. It is essential, therefore, that all staff who are likely to deal with matters such as job applications/interviews are aware that discrimination on these grounds is unlawful. An employer is not permitted to discriminate, on any of the grounds set out above, against either an employee or a prospective employee in relation to:

• access to employment;
• conditions of employment;
• training or experience for or in relation to employment;
• promotion or re-grading; or
• classification of posts.

Unlike under the Unfair Dismissals Act, there is no minimum period of service to be met by an employee before a claim can be brought under the Employment Equality Acts.

The Protection of Employees (Part Time Work) Act 2001 and the Protection of Employee (Fixed-Term Work) Act 2003 prohibits employers from discriminating against employees in part time positions or fixed term positions.

Detailed rules apply regarding the treatment of employees where a business is being transferred from one employer to another. In essence, the obligations which the original employer had towards his employees will be taken over by the new employer. This includes rights arising from the employee's contract of employment and collective agreements. Both the previous and new employer are obliged to inform their respective employee representatives of the reasons for the transfer, the implications of the transfer and the measures envisaged to be taken in relation to the affected employees in good time before the transfer is carried out.

The Organisation of Working Time Act 1997 sets out the statutory rights for employees in respect of rest, maximum working time and holidays.

The Act provides for a statutory minimum period of four weeks of paid annual leave for full-time employees. In addition, employees are entitled to nine paid public holidays each year. Where employees work less than 1365 hours per leave year the Act sets out details of how their leave should be calculated.

The Act further provides that an employee may work a maximum average working week of 48 hours and averaging may be balanced out over a 4, 6 or 12 month period depending on the circumstances. In general an employee may not "opt out" of the maximum weekly working hours limit.

Under the terms of the Maternity Protection Acts 1994 and 2004 employees are entitled to 26 consecutive weeks maternity leave, subject to certain conditions. The Acts also provide for an additional 16 consecutive weeks as additional maternity leave. The employer is not obliged to pay an employee during maternity or additional maternity leave but the employee may be eligible for maternity benefit from the Department of Social Welfare.

In addition, an employee is entitled to such time off as is necessary from her normal working time, without loss of pay, to attend medical or related antenatal or postnatal appointments. Pursuant to the 2004 Act the employee and her spouse are also entitled to time off for certain antenatal classes.

After taking maternity leave the employee is generally entitled to return to work with the same employer in the same job and under the same contract of employment. Dismissal on grounds of pregnancy or for the exercising of rights under the Acts is prohibited.

There is no entitlement to paternity leave under Irish law.

The Parental Leave Act 1998-2006 entitles each parent (natural or adoptive) of children aged 0-8 (or 0-16 in the case of a child with a disability) to 14 weeks of unpaid leave from employment.

The Carer's Leave Act 2001 (as amended) allows employees to take up to 104 weeks unpaid leave if they wish to care personally for persons who require full time care and attention. An employee must have one years service to qualify. The Department of Social, Community and Family Affairs will objectively assess whether the person to be cared for is a "relevant person" for the purposes of determining whether the provisions of the Act apply.

Force Majeure Leave is provided for under the Parental Leave Act 1998-2006. This entitles employees to paid leave for up to three days in any twelve month period, or five days in any period of 36 consecutive months whereby because of a sudden injury or illness, affecting a member of the employee's immediate family, that employee's presence to assist that family member is indispensable. This leave specifically excludes bereavements.

The Employees (Provision of Information and Consultation) Act 2006 implements Council Directive 2002/14/EC into Irish law. The Act is being introduced on a phased basis and applies to undertakings with at least 150 employees since 4 September 2006; to undertakings with at least 100 employees from 23 March 2007, and finally to undertakings with at least 50 employees from 23 March 2008. It gives employees in an undertaking the right to request their employer to put in place an information and consultation procedure. At least 10 percent of the workforce in an undertaking must request this for the employer to be obliged to comply with the request. The information and consultation procedure may then be voluntarily agreed upon or failing this the standard rules for information and consultation provided for in the Act, will apply.

The method of wage payment and the regulation of circumstances in which employers may make deductions or receive payments from an employee's wages are governed by the Payment of Wages Act, 1991.

The National Minimum Wage Act 2000 provides that the national minimum wage is €8.65 per hour with effect from 1st July, 2007.

There is no obligation to pay an employee absent from work due to illness/injury unless this is provided for under a collective agreement or under the contract of employment. However, illness benefit may be payable to the employee by the Department of Social and Family Affairs during periods when an employee is unfit for work due to illness.

An employer in Ireland is prohibited from employing a non-EEA national without first having obtained the relevant permission to do so. Citizens from within the EEA who intend to work in Ireland do not require such permission.

Ireland was one of the few countries that decided not to impose restrictions on citizens from the new EU-10, and as such they do not need to obtain an employment permit to work in Ireland. However, subject to limited exceptions, nationals of Bulgaria and Romania require an employment permit to work in Ireland.

There are various procedures applicable in Ireland in relation to the employment of a non-EEA national depending on the particular circumstances. The following types of employment permit arrangements are available:

1. The Green Card Scheme;
2. The Work Permit Scheme;
3. The Intra Company Transfer Permits; and
4. The Spousal/Dependant Permits.

All citizens of non-EU countries whether they have acquired permission to work in Ireland or not are subject to immigration control at the point of entry into Ireland. Some citizens may, depending on their nationality, need to obtain an entry visa before entering Ireland.

October 2007.


Related Practice Areas: Employment, Pensions and Employee Benefits.