EMPLOYMENT LAW EXPLAINED

(This article is not an official explanation, is for informational purposes only and cannot be unconditionally applied in every case)

Starting Employment

Day five statement

Within five days of starting work, all employees must get a written statement of the following core terms of employment:

• the full names of the employer and the employee
• the address of the employer
• the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract
• the rate or method of calculation of the employee’s pay
• the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week

 

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

• the full names of the employer and the employee
• the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office
• the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places
• the title of the job or nature of the work for which the employee is employed
• the date of commencement of the employee’s contract of employment
• in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires
• the rate of pay or method of calculating pay
• The right to a written statement of the average hourly rate of pay for any reference period upon request
• the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval
• any terms or conditions relating to hours of work (including overtime)
• any terms or conditions relating to paid leave (other than paid sick leave)
• any terms or conditions relating to incapacity for work due to sickness or injury and paid sick leave
• any terms or conditions relating to pensions and pension schemes
• the period of notice which the employee is required to give and entitled to receive
• a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

 

Pay/Wages

National Minimum Wages

From 1 January 2024 the National Minimum Wage rate increases from €11.30 to €12.70 per hour. Employees under the age of 18 are only guaranteed up to 70% of the national minimum wage, which is €8.89 per hour. Your employer can pay you more than the minimum wage if they want to, but they are not obliged to do so by law.

The national minimum wage does not stop an employer from offering you a higher wage. You cannot agree to be paid less than the minimum wage or to do unpaid work unless you are employed by a close family relative or are on a recognised apprenticeship.

Pay slips

All employees are entitled to receive a pay slip with every payment of wages. This pay slip should show the
gross wage (wage before deductions) and the nature and amount of each deduction.

Deductions

An employer is allowed to make the following deductions from an employee’s wage:

• Any deduction required or authorised by law(e.g. PAYE or PRSI)
• Any deduction authorised by the term of an employee’s contract (e.g. pension contributions, or particular till shortages)
• Any deduction agreed to in writing in advance by the employee (e.g. health insurance subscription, sports and social club membership subscription)

 

Tips

If you work in a position where employees receive tips and gratuities from customers (for example, in a restaurant or bar), you are not automatically entitled to receive these tips. However, you are also not obligated to tip your employer.

If all tips are collected by management and paid to staff through a payslip, then these tips are taxed in the usual way.

Minimum payment in certain circumstances

A new minimum payment will apply when an employee on a zero hours contract, is called in to work and does not receive the expected hours of work.

The minimum payment is calculated as three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set out in an Employment Regulation Order (if one exists for that sector and for as long as it remains in force).

The already existing method of payment (at least 25% of the contract hours or 15 hours) continues to apply overall.

Working hours

Zero hours

The Organisation of Working Time Act 1997 (OWTA) is amended to prohibit zero hour contracts except in the following circumstances:

• where the work is of a casual nature
• where the work is done in emergency circumstances
• where short-term relief work is used to cover routine absences for the employer

 

Maximum Working Week

The maximum an employee should work in an average working week is 48 hours.

This working week average should be calculated over a four-month period. There are however some exceptions to this average period.

Usually, you can find your working hours and work patterns in your contract of employment. You may also find your hours in an Employment Regulation Order or Registered Employment Agreement.

If your hours of work change from week-to-week, your employer must:

• Tell you the starting and finishing times at least 24 hours before your first day of work.
• Give you at least 24 hours’ notice of your working hours for each day you have to work (particularly if you do not work every day). For example, they should put up a notice in an obvious place on a day that you are working.
• Give you 24 hours’ notice if you have to work additional hours. However, they can ask you to work at less than 24 hours’ notice in unexpected cases, for example when they need you to cover for another employee who is off sick.

 

Breaks

Employees are entitled to:

• A daily rest period of 11 consecutive hours per 24 hours
• A weekly rest period of 24 consecutive hours per seven days, following a daily rest period
• A 15-minute break after working 41⁄2 hours
• A 30-minute break after working six hours

The break should not be at the end of the working day.

Special rules apply if you work in a shop and you work more than 6 hours including from 11.30am to 2.30pm. You are entitled to a one-hour consecutive break which must be between 11.30am and 2.30pm.

Payment for breaks is not a statutory entitlement. You don’t have a legal right to smoking breaks.

Sundays

If not already included in the rate of pay, an employee is generally entitled to paid time off in lieu or a premium payment for Sunday working.

An employee is entitled to the premium payment for Sunday working payable to a comparable employee in a collective agreement in force in a similar industry or sector.

Holidays and Public Holidays

Holiday entitlements are earned from the date of commencement of employment.

The minimum annual leave entitlement is 4 working weeks paid annual leave per leave year. However, annual leave is accrued based on time worked by the employee. Full-time employees earn one week of paid annual leave for every three months worked. Employees who work 1365 hours in any given leave year have earned their full four week annual leave entitlement at that point, except if it is a leave year in which the employee changes employment.

Part-time employees are entitled to annual leave consisting of 8% of hours worked, subject to a maximum of 4 working weeks in the leave year. Employees are also entitled to nine public holidays during the year, in respect of which an employer may choose to give one of the following four options:

• a paid day off on the day, or
• a paid day off within a month, or
• an extra day of paid annual leave, or
• an extra day’s pay

 

Public Holidays

• 1st January (New Year’s Day)
• First Monday in February
• St. Patrick’s Day (17th March)
• Easter Monday
• First Monday in May
• First Monday in June
• First Monday in August
• Last Monday in October
• Christmas Day (25th December)
• St. Stephen’s Day (26th December)

 

In order for a part-time employee to qualify for a public holiday, he/she must work at least 40 hours in the 5-week period that immediately precedes the public holiday.

Pay for Public Holidays

If the public holiday falls on a day on which the employee does not normally work, the employee is entitled to one fifth of his/her normal weekly wage for the day.

Annual leave and certified sick leave

From the first day in a job employees are building up holiday entitlements even if they are on certified sick leave and whether they are part-time or full time. If an employee is on certified sick leave at the end of the leave year the annual leave they have earned and have not been able to take is carried over and available to take for the next 15 months.

From 1 January 2024 the number of Statutory Sick Leave days will increase from 3 to 5. This is called statutory sick pay (that means the legal minimum). Sick pay is paid by your employer at 70% of your normal pay up to a maximum of €110 a day.

You must be an employee and be working at least 13 weeks with your employer before you can get statutory sick pay.

Your employer can have a more generous sick pay scheme, but they can’t give you less than the statutory amount.

You can get sick pay if you are:

• On probation
• Undergoing training (interns)
• An apprentice
• An agency worker

 

Employers’ Obligations

An employer is responsible for ensuring that their employees receive certain basic employment rights.

The main obligations include:

• To only engage employees who have permission to work within the State
• To ensure that they provide employees with a written statement of terms and conditions of employment
• To give employees a written statement of pay or payslip
• To pay employees not less than the statutory minimum wage rates
• To comply with the maximum working week requirements
• To provide breaks and rest periods during working hours
• To give annual leave from work
• To give a minimum amount of notice before termination of employment
• To maintain records in relation to their employees and their entitlements.

 

For further information download the Guide to Employment, Labour and Equality Law at www.workplacerelations.ie.

Employment Status of Employees

Employers engage persons on either contracts of service or contracts for services. Only a person engaged under a contract of service is deemed to be an employee and therefore protected by the full range of employment legislation; an independent contractor or self-employed person will have a contract for services with the party for whom the work is being done. The distinction between a contract of service, on the one
hand, and a contract for services, on the other, is sometimes unclear but the type of contract a person is engaged under can have serious implications for both employer and employee in matters such as employment protection legislation, legal responsibility for injuries caused to members of the public, taxation and social welfare.

For further information, please see the Code of Practice for Determining Employment or Self-Employment Status, which can be downloaded from www.revenue.ie

Fixed-Term Employees/Temporary Agency Workers

Depending on business needs, companies may require to take on part-time employees, fixed-term employees or temporary agency workers.

Fixed-Term Employees

A fixed term employee is someone who is employed under a contract which contains a specific start and end date or who is employed to carry out a specific task or project or the continuity of whose contract is contingent on a particular event such as the availability of continued funding from an external source.

Fixed-term employees cannot be treated in a less favourable manner than comparable permanent employees in relation to conditions of employment and all employee protection legislation, other than that relating to unfair dismissal in certain circumstances, applies to fixed-term employees in the same manner as it applies to a permanent employee. Fixed-term employees may only be treated less favourably than a permanent employee where such treatment can be justified on objective grounds.

Temporary Agency Workers

An agency worker is an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

The law provides that all temporary agency workers must have equal treatment with workers hired directly by the hirer in respect of:

• Pay
• Working time
• Rest periods
• Rest periods during the working day
• Night work
• Overtime
• Annual leave
• Public holidays.

 

Temporary agency workers must also have equal access, with the hirer’s own workers, to facilities such as childcare, canteen or similar amenities, or transport services.

Where a vacant position of employment arises with the hirer of an agency worker, the hirer must, when informing his/her own employees, inform any agency worker who is for the time being assigned to work for him/her, of the vacancy for the purpose of allowing the agency worker to apply for that position.

Part-Time Employees

A part-time employee is someone who works fewer hours than a comparable full-time employee doing the same type of work.

A part-time employee may not be treated less favourably than a comparable full-time employee in respect of any condition of employment and all employee protection legislation applies to part-time employees in the same manner as it already applies to full-time employees.

Employment of Young Persons

The Protection of Young Persons Act is designed to protect the health of young workers, and to ensure that employment during the school year does not put their education at risk.

The law sets minimum age limits for employment, sets rest intervals and maximum working hours, and prohibits the employment of those under 18 years of age on late night work.

Employers must also keep specified records for those workers aged under 18. In general, the Act prohibits the employment of children under the age of 16. However 14 and 15 year olds can be employed:

• during the school holidays,
• part-time during the school term,
• as part of an approved work experience or education programme where the work is not harmful to their
  safety, health, or development.

 

Children (i.e. under 16 years of age) can be employed in cultural, artistic, sports or advertising work which is not harmful to their safety, health, or development and does not interfere with their attendance at school, vocational guidance or training programmes or capacity to benefit from the instruction received. In order to do so permission must be obtained by way of a licence issued on behalf of the Minister for Business, Enterprise and Innovation.

The type of activities for which licence applications are made would typically be television commercials, films or theatre performance that require the presence of a child. The licence sets out the conditions under which the children may be employed, such as general conditions about parental consent, supervision and education arrangements, and the maximum working times and minimum breaks appropriate to each group. The employer should apply in writing for a licence at least 21 days before the employment commences.

Transfer of Undertakings

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 provide that the employment law rights and obligations of the original employer will be transferred to the
new employer in the event of the transfer of the business or part of the business. The new employer must observe the terms and conditions agreed in any collective agreement on the same terms as were applicable to the original employer.

Equality

The Employment Equality Acts outlaw discrimination in work-related areas such as pay, vocational training, access to employment, work experience and promotion including harassment and victimisation at work and the publication of discriminatory advertisements.

Discrimination is prohibited where it relates to gender, civil status, family status, sexual orientation, religious belief, age, disability, race, colour, nationality, ethnic or national origins and membership of the travelling community.

Any provision in a collective agreement, Employment Regulation Order, Registered Employment Agreement or Sectoral Employment Agreement which discriminates on any of the grounds set out above may be declared null and void.

Termination of Employment

Minimum Notice

The Minimum Notice provides that every employee who has been in the employment of his/her employer for at least 13 weeks is entitled to a minimum period of notice before that employer may dismiss him or her. This period varies from one to eight weeks according to the length of service.

An employer and employee may agree payment in lieu of notice.

An employee who has 13 weeks service with his/her employer is obliged to give one week’s notice to his/ her employer when resigning, unless there is a written contract of employment that provides for a longer period, in which case this notice period must be given.

Employment contracts can be terminated in a variety of ways, such as dismissal, redundancy, or insolvency. To justify a dismissal, an employer must show that it either resulted from one or more of the following causes:

• the capability, competence or qualifications of the employee for the work s/he was employed to do;
• the employee’s conduct;
• redundancy;
• the fact that continuation of the employment would contravene another statutory requirement;
• that there were other substantial grounds for the dismissal.

 

Redundancy

A redundancy situation arises, in general, where a job no longer exists and the person is not replaced.

Under the Redundancy Payment Scheme all eligible employees are entitled to a statutory redundancy lump sum payment on being made redundant. An employee is entitled to two weeks pay for every year of service, with a bonus week added on, subject to the prevailing maximum ceiling on gross weekly pay.

An employee must have at least two years continuous service (104 weeks) to qualify for statutory redundancy. An employer who is making an employee redundant must give appropriate notice to the employee according to the length of service under the Minimum Notice and Terms of Employment or the employee’s contract.

However, notice of redundancy is only required two weeks before the termination of employment and must be given in writing. This can be done either by using Part A of the RP50 form (see below) or by informing the employee in writing of the redundancy. The employee should not sign Part B of theRP50 form until they have actually received their redundancy payment. For more information including how to calculate redundancy entitlements using the redundancy calculator, log onto www.welfare.ie.

Collective redundancies

Where employers are planning collective redundancies, they are obliged to supply the employees’ representatives with specific information regarding the proposed redundancies and to consult with those representatives at least 30 days before the dismissal takes place to examine if the redundancies can be avoided or lessened or their effects mitigated.

Enforcement

Complaints in relation to alleged contraventions of employment and equality legislation may be presented to the Workplace Relations Commission. The Commission’s e-Complaint Facility can be accessed at www.workplacerelations.ie.

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 non-payment 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 must take 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.

Adjudication

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 are held in private. 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:

• declare whether the complainant’s complaint was or was not well founded,
• require the employer to comply with the relevant provision(s),
• 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.

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.

Referral form can be found on www.workplacerelations.ie or email: mediation@workplacerelations.ie

Other sources of reliable information

Department of Foreign Affairs	(01) 4082000	www.dfa.ie
Embassy of Ukraine to Ireland	(01) 6685189	https://ireland.mfa.gov.ua/
Immigrant Council of Ireland	(01) 6740200	www.immigrantcouncil.ie
Irish Immigration Service	(01) 6167700	www.irishimmigration.ie
Irish Congress of Trade Unions	(01) 8897777	www.ictu.ie
Irish Human Rights and Equality Commission	(01) 8589601	www.ihrec.ie
Irish Red Cross	(01) 6424600	www.redcross.ie
Irish Refugee Council	(01) 7645854	www.irishrefugeecouncil.ie
Migrant Rights Centre Ireland	083 0755387	www.mrci.ie
Workplace Relations Commission	(01) 6136700	www.workplacerelations.ie