Employment Law – Employee

private-clientWhen it comes to taking a stand over your rights as a worker or employee in the workplace then the first step is to know exactly what those rights are, which can be a real minefield.

The first step in that process is to find out what sort of employee you are, as many of the rights depend on that.

What Kind of Worker Are You?

At first glance it’s easy to assume that we all know what kind of worker we are but in fact it’s not that simple. For the purposes of work-related legislation, there are three main categories:

  • Employee – someone employed by a company, on their books, and with an open-ended or fixed-term employment contract, working full-time or part-time.
  • Worker – all other workers except the self-employed, for example, some freelancers, casual workers and agency workers.
  • Self-employed – working for yourself for a variety of different companies or people

Employees get the best protection in terms of their rights, and workers get the core rights.
If you are not sure which category you fit contact us and we will be able to assist.

Try The Informal Approach

If you believe that you are being denied your rights then it’s worth trying to sort it out informally, as it could be that the company simply doesn’t understand the law or their obligations, something that is particularly true in smaller organisations – where there may not be a trained Human Resources professional to help them do this. If this is the case then, talking the issue over may be enough to get it put right.

Then Take Further Action

If it turns out that the organisation is aware of what they are doing then it will be either because they think they can get away with it, or they believe in a different interpretation of the regulations. In both cases the way forward will be to commence a Grievance procedure, to follow it through and determine the outcome. If you still believe that your rights are being restricted then you can take it to the Workplace Relations Commission (WRC) who will make an impartial but legally binding Decision on the matter. This is where we can assist. If you have been unable to resolve an employment problem informally, then contact us.

We have a significant and successful track record in representing employees at all levels in legal disputes. We pride ourselves in understanding the requirements of any employee, however senior and experienced, pitted against the resources of an organization.

We deal with all aspects of Employment Law, including:

  • Bullying / Harassment
  • Compromise Agreements
  • Contracts of Employment
  • Discrimination
  • Dismissal
  • Fixed-Term Contracts
  • Flexible Working
  • Grievance / Disciplinary Disputes
  • Occupational Stress Claims
  • Part-Time Working
  • Redundancy
  • Restrictive Covenants / Restraint of Trade
  • Transfer of Undertakings / TUPE
  • Variation of Employment Contract
  • Whistleblowing

We also offer the facility to resolve employment issues by Mediation.

Illegal Employment Contracts

Before considering any of the Employment rights detailed on this section of the website it is important to bear in mind that a  Contract of Employment may be viewed as illegal if, for example, an employee and employer agree that part of the employee’s pay will be paid in cash and not subject to deductions of Income Tax and PRSI.  In this case the parties to the contract are seeking to defraud a third party,  the Revenue Commissioners and in this instance the employee could be unable to invoke the benefits of Employment legislation.

In practice, an employee who is knowingly participating in an illegal Contract would be unable to pursue rights, such as taking a claim for Unfair Dismissal if the employment is terminated. A Contract may be illegal from the outset, or become illegal because of the mode in which it is carried out.

Aspects of Employment Law

Bullying / Harassment

Everyone should be treated with dignity and respect at work. The terms “bullying” and “harassment” are used interchangeably by most people, and many definitions include bullying as a form of harassment.

Harassment, in general terms, is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to:

  • Gender: this means man, woman or transsexual
  • Civil status: includes single, married, separated, divorced, widowed people, civil partners and former civil partners
  • Family status: this refers to the parent of a person under 18 years or the resident primary carer or parent of a person with a disability
  • Sexual orientation: includes gay, lesbian, bisexual and heterosexual
  • Religion: means religious belief, background, outlook or none
  • Age: this does not apply to a person aged under 16
  • Disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
  • Race: includes race, skin colour, nationality or ethnic origin
  • Membership of the Traveller community.

and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient.

Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient.

Bullying or harassment may be by an individual against an individual (perhaps by someone in a position of authority such as a manager or supervisor) or involve groups of people. It may be obvious or it may be insidious. Whatever form it takes, it is unwarranted and unwelcome to the individual.

Employers are responsible for preventing bullying and harassing behaviour. The employer should have Policies to ensure that bullying and harassment do not occur in the workplace.

Compromise Agreements

ContractA “Compromise Agreement” (sometimes referred to as a “Severance Agreement“) is the only way in which Employees and Employers can legally settle a dispute arising under a contract of employment. There are strict conditions as to how Compromise Agreements must be drawn up if they are to be legally binding. These are:

  • the agreement must be in writing;
  • the agreement must relate to a particular complaint;
  • the employee or worker must have received advice (preferably from an
    independent solicitor) as to the terms and effect of the proposed agreement in particular, its effect on his/her ability to pursue his/her rights before an Employment Tribunal.

Contracts of Employment

A contract of employment is an agreement between employer and employee and is the basis of the employment relationship. A contract is made when an offer of employment is accepted. A number of rights and duties, enforceable through the courts, arise as soon as this happens.

Most employment contracts do not need to be in writing to be legally valid, but writing down the terms of the contract will cut down on disagreements later on. The Terms of Employment (Information) Acts 1994-2001 require employers to provide most employees with a written statement of the main terms within two calendar months of starting work. This is a minimum duty on the part of the employer.

Discrimination

Employers are required to ensure they have policies in place which are designed to prevent discrimination both to stay within the law and to attract the best employees. It is unlawful to discriminate against employees on the grounds of:

  • Gender: this means man, woman or transsexual
  • Civil status: includes single, married, separated, divorced, widowed people, civil partners and former civil partners
  • Family status: this refers to the parent of a person under 18 years or the resident primary carer or parent of a person with a disability
  • Sexual orientation: includes gay, lesbian, bisexual and heterosexual
  • Religion: means religious belief, background, outlook or none
  • Age: this does not apply to a person aged under 16
  • Disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
  • Race: includes race, skin colour, nationality or ethnic origin
  • Membership of the Traveller community.

The legislation outlaws discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion.

Termination-of-EmploymentDismissal

A dismissal occurs when an employer terminates an employee’s contract of employment for one of the following potential reasons:

  • a reason related to capability or qualifications;
  • a reason related to the conduct of the employee;
  • that the employee’s position was redundant;
  • that the employee could not continue to work in the position which he or she held without contravention (either on the employee’s part or on that of the employer) of a duty or restriction imposed by or under an enactment;
  • some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held;

The above can be viewed as potentially fair reasons for dismissal. However, in order to demonstrate that a dismissal is fair an employer must also follow the minimum Statutory Dismissal and Disciplinary Procedures and show that they acted reasonably in dismissing the employee for that reason. In other words, an employer must ensure that the reason for the dismissal is one of the reasons specified above and that the decision to dismiss was reasonable based in all the circumstances, including the completion of a fair procedure.

Constructive Dismissal occurs where an employee resigns in circumstances in which they are entitled to do so by reason of the employer’s conduct. A Constructive Dismissal complaint could arise out of a significant breach, going to the root of the Contract of Employment. Constructive Dismissal Claims are very difficult for an employee to establish unless he can show that he exhausted all internal Grievance procedures. No employee should consider resigning in such circumstances without first taking legal advice.

Fixed-Term Contracts

A Fixed-Term Contract is a contract that is for a fixed period of time and ends when a specific date is reached, or is for the purposes of fulfilling a specific task and ends when the task has been completed, or where the Contract is for a specific event, ends when that event does or does not happen.  Fixed Term employees have the right not to be treated any less favourably than comparable employees on permanent contracts.

Employees who have been employed on successive Fixed-Term Contracts (that is, they have had the Contract renewed previously or have been employed on more than one) for a period of four continuous years, can ask their employer for a statement confirming that they are permanent and/or no longer on a Fixed-Term Contract. Employers are obliged to issue this statement or one giving objective reasons why the Contract remains fixed-term within 21 days of the employee’s request. The employer can only keep them on the Fixed-Term Contract if they can objectively justify it at the point it was last renewed.

Flexible Working

Ireland-Cross-BorderWhereas in Northern Ireland there are absolute rights to  flexible working hours in certain circumstances, there is no general right in Irish law to access to flexible/part-time working.  However, if there is a provision in an employer’s Handbook or a custom and practice of allowing such requests, then the employer’s general discretion to decline a request in this regard may not be as absolute.

The Labour Relations Commission (“LRC”) issued a Code of Practice on Access to Part-time Work in January 2006, which provides useful guidance to employers.  Whilst the Code of Practice is not legally binding on employers, adherence to its provisions would go some way in assisting an employer to successfully defend a claim before the WRC.

Where an employer agrees to allow an employee to work flexible hours, then it is advisable to draw up an Agreement and have the Agreement signed by the parties.

Grievance / Disciplinary Disputes

Disciplinary procedures are an aid to the effective management of people, and should not be viewed primarily as a means of imposing sanctions or as leading to dismissal. Disciplinary procedures may be used for problems with an employee`s conduct or performance, although some organisations have a separate procedure for dealing with performance problems.

Grievances are concerns, problems or complaints that employees raise. Where possible, you should try to settle Grievances with your line manager. If this isn’t possible, your employer should have formal Grievance procedures to deal with grievances fairly, consistently and speedily.

Most employees are entitled by law to a written statement setting out the main particulars of their employment within two months of starting their employment. As well as information on pay, hours, holiday entitlement and pensions the statement must cover a note giving details of your employer’s disciplinary and grievance procedures. The note must:

  • cover any disciplinary rules which apply to you
  • specify the person to whom you can apply and the manner in which you should make your application if you’re dissatisfied with any disciplinary decision relating to you or for the purpose of seeking redress of any grievance relating to your employment
  • cover any further steps which follow from making any such application

Occupational Stress Claims

The Health and Safety Executive England (HSE) defines stress as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them‘. The Irish Health and Safety Authority (HSA) states that “there are as many definitions of stress as there are definitions of fatigue, mental health and upset.  Stress is a negative feeling, associated with physical symptoms including increased heartbeat, swiftness of breath, dry mouth, and sweaty palms and over the longer term, digestive upset and cramp. Psychological symptoms range from heightened emotional states, lack of impulse control, feelings of being overpowered, losing control and fearfulness generally.  People under stress behave differently. They may be angrier, more confrontational, show less time for others and impose an urgency on situations which is unrealistic. Other characteristics include fatigue, proneness to upset, withdrawal, self neglect and depression. Many factors, both inside and outside of the workplace, which can lead to stress. As well as anxiety and depression, stress has been associated with heart disease, back pain and gastrointestinal illnesses.”

In the workplace, it can be easy for managers to confuse positive pressure, which can create a buzz, and the harmful effects of pressure that is beyond a person’s ability to cope. This is a complicated and relatively new area of emerging law in both the Personal Injury and Employment Law fields. For further information go to the Occupational Stress Claims section of our Website.

Part-Time Working

Part-time workers have the right not to be treated less favourably than comparable full-timers. This means they should:

  • receive the same rates of pay
  • not be excluded from training simply because they work part-time
  • receive holiday entitlement pro rata to comparable full-timers
  • have any career break schemes, contractual maternity leave and parental leave made available to them in the same way as for full-time workers, and
  • not be treated less favourably when workers are selected for redundancy.

Redundancy

Redundancy is generally where an employer needs to reduce his or her workforce. It may happen because a workplace is closing down, or because fewer employees are needed for work of a particular kind. Normally your job must have disappeared. It is not redundancy if your employer immediately takes on a direct replacement for you.

For the Redundancy to be valid it is also important that prescribed Notices are served by the employer on the employee. The employee in such circumstances is entitled to a  minimum Statutory Redundancy payment. In certain circumstances the employee may also be able to negotiate a payment over and above his statutory entitlement (known as an “Ex Gratia” payment). In such circumstances the employee should ensure to take legal advice from a solicitor before the signing of any Severance Agreement to ensure that he avails of any Tax Reliefs available.

Restrictive Covenants / Restraint of Trade

Law-BooksEmployers will often insert Restrictive Covenants/Trade Clauses into a Contract of Employment in order to protect any confidential information or trade secrets that employees have access to during their employment. This is quite reasonable. However such clauses may also attempt to restrict future employment of employees once they leave the organisation.  Again, this can be quite reasonable but an employee who is asked to sign a Contract of Employment which incorporates such restrictions, where the employee is concerned that the covenant may inhibit his ability to seek further employment in the future should this immediate employment cease, should seek legal advice before signing the Contract.

Transfer of Undertakings / TUPE

When the whole or part of an employer’s business or undertaking is sold or transferred as a going concern to another employer, which can include the outsourcing of an ancillary function to an outside contractor, a TUPE transfer is said to occur. The term ‘TUPE’ is an acronym for the European Council Directive No. 2001/23/EC of 12 March 2001 relating to the safeguarding of employees` rights in the event of transfer of undertakings, businesses or parts of businesses.

The seller of the business is referred to as the ‘transferor’, while the recipient of the business is known as the ‘transferee’. A TUPE transfer is referred to in the Regulations as a ‘relevant transfer‘. When there is a relevant transfer, the transferee inherits the Contracts of Employment of the persons employed by the transferor immediately before the transfer took place. The transferee also inherits the transferor’s rights, power and duties and most of the transferor’s liabilities in respect of those employees.

Where there is a relevant transfer the transferee is legally bound to make appropriate pension provision for transferred employees if the transferor operated an employer-contributed pension scheme for them.

An employee who is dismissed wholly or partly because of a relevant transfer is treated in law as having been unfairly dismissed. However, that rule does not apply to an employee dismissed for an ‘economic, technical or organisational reason entailing changes in the workforce’. Such a dismissal will be treated by the WRC as having been for ‘some other substantial reason‘.

Employers contemplating the sale or transfer of the whole or any part of their business or undertaking (or the acquisition or purchase of another employer’s business or undertaking) must inform appropriate employee representatives of certain matters. If measures are envisaged in relation to the affected employees, the employer that envisages the measures must consult the employee representatives about them. A failure to do so will lead to a Complaint and the likely imposition of a punitive Award by the WRC.

Variation of Employment Contract

The terms of an Employment  Contract cannot be varied except by agreement of the parties and a change cannot be unilaterally imposed by the employer. There are, however, a number of ways in which a contract can be varied as follows:

  • Collective Agreements
    The most common form of variation, other than one expressly agreed between the employer and employee, is variation agreed with trade unions acting on behalf of specific employees or employees generally. In practice, employees will accept terms and conditions which are negotiated on their behalf by trade unions.
  • Express Contractual Right To Vary
    It is possible to include within the contract the employer’s right to alter or vary the terms of the contract. However, Courts or Tribunals will not unilaterally agree to this right being exercised and therefore to rely on this, the change must provide both business efficacy and reasonableness.
  • Custom & Practice
    Another manner in which the Contract of Employment may be varied is through the operation of custom and practice of the employment. However, in order for a term to be implied through custom and practice, it must be so notorious and well known that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties. The term also needs to be reasonable and equitable, and it must be necessary to give business efficacy to the contract. It must also be obvious, with a capable and clear expression and it must not contradict any express terms of the contract.
  • Dismissal & Re-Engagement
    Dismissal and re-engagement is another method to varying and employee’s contract of employment but, in the normal course, the employees would be expected to be receiving promotion or better terms of employment.

Whistleblowing

The Protected Disclosure Act 2014 provides protection for a worker who makes a qualifying disclosure (also referred to as whistleblowing) in good faith to their employer or other third party against dismissal or detriment for making the disclosure (known as a “Protected Disclosure“).

It is automatically unfair to dismiss an employee or subject them to a detriment for making a Protected Pisclosure.

For further information on the Protected Disclosure Act 2014 please read Brian Morgan`s Article on the Act: “The “WHISTLEBLOWERS” Protected Disclosure Act 2014 – For Good or For Bad?

Links

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The Workplace Relations Commission:

The Workplace Relations Commission (WRC) was created under the Workplace Realtions Act 2015.

The Act has substantially amended the primary Employment and Industrial Relations legislation in Ireland and formed the office of the Director General of the Commission, providing the legal basis for the new Workplace Relations Commission (WRC) and its simplified, more accessible processes. The Act enables the WRC to undertake a full range of functions formerly carried out by the Labour Relations Commission (LRC), including the Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal (EAT) and the National Employment Rights Authority (NERA).

The previous system facilitated multiple Complaints to different Courts arising from the same set of facts. The new system requires all Complaints that are based on a single set of facts to be heard at one Hearing before an Adjudication Officer. A new single point portal called the “Workplace Relations Service” has replaced the 5 separate previous entry points for Complaints.

All Employment Law Complaints made on or after the 1st October 2015 are heard by “Adjudication Officers” at first instance. The Workplace Relations Act also provides for the Labour Court to be the appellate body to determine, among other matters, Appeals against decisions of the WRC Adjudication Officers.