Employment

Maternity Leave

Entitlement to Maternity Leave A pregnant employee is entitled to leave, (maternity leave), from her employment for a period (the minimum period of maternity leave) of not less than 26 consecutive weeks. Part may be postponed. The Minister may by order, made with the consent of the Minister for Social and Family Affairs and the consent of the Minister for Finance, extend the statutory period. The period was extended to 26 weeks pursuant to Eu Directives under this power. Entitlement to the minimum period of maternity leave is subject to a pregnant employee having, as soon as reasonably practicable but not later than four weeks before the commencement of maternity leave, notified in writing her employer of her intention to take maternity leave; and at the time of the notification, given to her employer or produced for inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.… Read the rest

Maternity Issues

Family Rights

Maternity Discrimination Pregnancy may raise issues of equality and discrimination in employment. Discrimination on the grounds of sex or gender is unlawful. Discrimination specifically includes less favourable treatment of a woman on account of pregnancy or maternity leave. Failure to employ a person due to the possible effect on the employer of pregnancy and maternity leave constitutes direct discrimination. The European Court of Justice has ruled in a number of cases, including a case relating to Ireland, that pre and post-maternity sick pay must be granted in relation to pregnancy-related illnesses and complications, on the same basis as ordinary sick pay. EU Directives require, and the Unfair Dismissals Act has long since provided that dismissal by reason of pregnancy is an automatically unfair ground of dismissal. This applies even within the first year of employment. Unlike the position with most other grounds for dismissal, there is no waiting period in relation to this ground.… Read the rest

Paternity Leave

Family Rights

Entitlement to Paternity Leave An employee who is a qualifying parent in relation to a child is entitled to 2 weeks’ leave from his or her employment, known as “paternity leave”, to enable him or her to provide, or assist in the provision of care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both. The entitlement to paternity leave also applies in the case of a child who is, or is to be, adopted where the day of placement in respect of the child falls on or after 1 September 2016, or in any other case, where the date of confinement in respect of the child falls on or after 1 September 2016. A person may not avail of paternity leave where he avails of special adoptive leave for a sole male adopter. Qualification for Paternity Leave A qualifying parent in relation to a child, means a person other than the mother of the child who is the father of the child, the spouse, civil partner or cohabitant, as the case may be, of the mother of the child, or a parent of the child under the Children and Family Relationships Act where the child is a donor-conceived child.… Read the rest

Parental Leave

Family Rights

Persons Entitled to Parental Leave Employees and certain others are entitled to parental leave rights. An “employee” for this purpose means a person employed under a contract of service or apprenticeship. The following are deemed to be employees for the purpose of parental leave; a person places by an employment agency who personally performs any work or service for a business a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces or a civil servant an officer or servant of a local authority of a harbour authority, health board or member of the staff of an education and training board An employee who is a qualifying parent in respect of a child is entitled to leave from his or her employment known as parental leave for a period of 18 working weeks to enable him or her to take care of the child.… Read the rest

Parental Leave Issues

Family Rights

EU Directives I The Parental Leave Act 1998, as amended by the Parental Leave (Amendment) Act 2006, governs parental leave. It implements EU Directives. The legislation provides for unpaid leave of up to 18 weeks in total. A revised Directive on Parental Leave took effect in March 2012. The Directive seeks to promote equal opportunities for men and women to take leave. Men and woman are entitled individually to parental leave from birth or adoption until the age of eight. One of the four months is to be provided on a non-transferable basis, so as to encourage both partners to avail of it. The Directive contemplates that provision for parental leave will be enshrined in law or in collective agreements. Member States and their social partners may determine whether the leave is granted on a full time or part time basis, from time to time or by way of credit, taking account of needs of both sides of industry.… Read the rest

Carers’ Leave

Family Rights

Overview of Carer’s Leave Carers leave is governed by the Carer’s Leave Act 2001 as amended in 2006. Carers leave may be available to an employee with over 12 months’ service. Up to 104 weeks’ carers leave may be taken to look after an ill or incapacitated person, while preserving a right to return to work. A person may take carers leave to provide full-time care to certain connected persons. Full-time care and attention must be required. The person cared for must require continuous supervision and frequent attendance during the day in connection with normal bodily functions or in order to avoid dangers. The extent of the disability of the person concerned must be certified by a medical practitioner. The employee must have at least one year’s continuous service. Leave may be taken as a single block or in a number of blocks up to 104 weeks in total. An employer may refuse carer’s leave on reasonable grounds, for proposed periods up to 13 weeks.… Read the rest

Adoptive Leave

Family Rights

Overview I Adoptive leave is broadly similar to maternity leave. The legislation applies to domestic adoptions and adoptions from abroad. The principal entitlement is to take leave of a minimum of 24 weeks from the date the placement for adoption. An employee is entitled to take up to 16 additional weeks’ adoptive leave after termination of normal adoptive leave. Notice of additional leave must be given not more than four weeks before the originally intended return date The principal rights are granted to the adopting mother. An adopting mother (or sole father) is the person with whom the child has been placed or is being placed with a view to making an adoption order, or for bringing into effect, a foreign adoption. Overview II Broadly similar provisions as apply to maternity leave, apply in respect of protection of the employee’s rights during adoptive leave and additional adoptive leave. There are similar protections against unfavourable treatment for parents taking adoptive leave as apply to maternity leave. … Read the rest

Gender Discrimination

Equality

Equal Remuneration The Employment Equality Act, 1998 (as amended) incorporates two key implied terms into contracts of employment in relation to gender equality. One term requires equal pay, and the other term requires equal treatment. The right to equal pay covers all types of remuneration, including direct and indirect benefits, in cash or in kind. It excludes pension provision which is the subject of separate equality requirements. It includes sick pay, time off for training, redundancy payments, travel benefit, commissions and bonuses. It is deemed to be a term of the contract under which a person is employed that, he (or she) shall at any time be entitled to the same rate of remuneration for the work which he is employed to do as another, of the opposite gender, who is employed at that or any other relevant time, to do like work by the same or an associated employer. The ‘relevant time’, in relation to a particular time, is any time during the 3 years which precede, or the 3 years which follow the particular time.… Read the rest

UFD Scope of Act

Dismissal

Dismissal Dismissal means the termination of the employment contract, whether or not a proper notice was given. A person is generally dismissed where he is unequivocally told that his employment is at an end or the circumstances make this abundantly clear that this so. An employee’s repudiation of the contract is likely to be deemed a self-dismissal in highly exceptional circumstances only. Dismissal may occur on expiry of a fixed term contract, under certain circumstances. It includes the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose. Date of Dismissal The date of dismissal, where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, is the date on which that notice expires.… Read the rest

Registered Agreements

Collective Issues

REAs Registered Employment Agreements apply automatically to all the relevant group or type of employees in the sector, job type and grade to which they apply. The terms of a registered employment agreements in relation to pay and conditions of employment are incorporated in employees’ contracts, of employees to whom it is subject. A registered employment payment does not prejudice rights as to remuneration and conditions of employment which are conferred on any employee under any other legislation. There are provisions requiring that employees be informed of their statutory entitlements, where an ERO or REA applies. The terms of the ERO it must be incorporated in the written terms of employment, to be furnished at the commencement of employment. Prompt rectification of incomplete or incorrectly stated terms may be required by an inspector. LC Role The Labour Court registers the agreement. A register of employment agreements is to be maintained by the Labour Court.… Read the rest

Discipline & Grievances

Employment Contract

Grievances and Discipline The WRC and the courts are concerned principally with the fairness of workplace procedures. They do not generally seek to examine grievances, complaints and disciplinary action on their merits. Many, if not most unfair dismissals arise by reason of the failure of the employer to afford fair procedures. The Labour Relations Commission’s Code of Practice on grievance and disciplinary procedure sets out basic fair procedures that should be should be reflected in workplace disciplinary rules. The principles do not have the force of law, but account is taken of them by the WRC, the courts and other bodies in adjudicating dismissal and similar claims. It is recognised that the application of grievance and disciplinary procedures depend on the circumstances, size and nature of the workplace. In a smaller workplace, it will of necessity be the case, that simpler procedures and lesser levels of independent review will be possible.… Read the rest

Unfair Dismissal

Dismissal

Overview of Unfair Dismissal The Unfair Dismissals Act 1977 introduced a statutory right not to be unfairly dismissed. The right is not enforced by the courts and does not form part of the employment contract as such. The Act created a separate right to complain to either the Rights Commissioners Service or the Employment Appeals Tribunal, for a determination as to whether there has been an unfair dismissal. Cases are now heard by an adjudication officer in the Workplace Relations Commission and the Labour Court on appeal. The system operates separately from the courts. A claim for unfair dismissal is an alternative to a claim for wrongful damages/breach of contract. In the case of the vast majority of employees, their employment is terminable on relatively short notice. Accordingly, a wrongful dismissal claim is unlikely to yield anything more than the salary due during the notice period. There are separate rights to minimum notice periods on termination of employment, which can also be asserted by way of complaint to the WRC.… Read the rest

UFD Misconduct

Dismissal

Misconduct Conduct, or more correctly misconduct, is a potentially fair ground for dismissal. Conduct may relate to a single incident or to a series of incidents or circumstances over time. As in other areas, the bona fide opinion of the employer will generally be respected by the WRC, provided that fair and proper procedures have been followed. It is not a question of the WRC or the employer establishing the guilt or innocence of the employee. As with other areas, the WRC does not assess the truth or otherwise of the claim. It considers the reasonableness of the employer’s actions. If the employer has acted reasonably and has reasonable grounds for the suspicion, then the dismissal is likely to be fair. “Gross misconduct” may justify dismissal on the spot. In order to justify instant dismissal, the conduct must be sufficiently serious to be characterised as gross misconduct. It is limited to very serious intentional and deliberate misconduct, which permanently and patently rupture the relationship of mutual trust and confidence.… Read the rest

UFD Competence

Dismissal

Capability or competence The absence of competence, qualification or capability are potentially fair grounds for dismissal. The WRC does not second guess the employer in determining whether the employee lacks the requisite competence, qualification or capability. If a reasonable employer would reach this conclusion, and the employer honestly believes it, this will generally suffice for a fair dismissal, subject to fair procedures. However, if the circumstance discloses no reasonable grounds upon which an employer could reach such a conclusion, the dismissal is potentially unfair. Capability refers to the ability or capacity to do the job for which the employee is employed. Capacity to do the job covers the full range of circumstances which may cause incapacity, including illness and disability. Ill-health causing incapacity to do the job may be a potentially fair ground for dismissal. Qualifications cover formal qualifications required for the job, as well as legal requirements such as work permits. … Read the rest

UFD Other Grounds

Dismissal

Potentially Fair Grounds for Dismissal There are a number of potentially fair grounds for dismissal. It is not sufficient that the employer labels one of the ground as applicable. The application of the ground in the circumstances must be real and substantial. In addition, the employee must have been afforded fair procedure in relation to the investigation and finding that the ground applies. There be actual substantive and procedural fairness. The principal grounds on which a dismissal may be potentially be justified as fair are capability, competence and qualifications; conduct (or more accurately; misconduct); redundancy; other sufficient reason Deemed Unfair Dismissal I Certain grounds for dismissal are deemed unfair. They are trade union membership or activities legal proceedings against employer, religious or political beliefs race colour or sexual orientation pregnancy issues exercising statutory rights age (see above exemptions) membership of travelling community unfair selection for redundancy Deemed Unfair II The employee must show that the dismissal took place mainly or principally by reason of one of these grounds and are not otherwise. … Read the rest

UFD Remedies

Dismissal

Remedies for Unfair Dismissal At common law, the remedies available for wrongful dismissal are very limited. The majority of employees may have their employment contract terminated by the minimum notice period. This has the effect that even where there has been a breach of contract, the level of compensation available will be minimal. The Unfair Dismissals Acts creates its own enforcement mechanisms. This was formerly administered by the Rights Commissioners and the Employment Appeals Tribunal. It comprised a legal chairman, and two other members appointed respectively from persons nominated by employers’ and employees’ representatives. Cases are now heard by adjudication officers in the Workplace Relations Commission with a right of appeal to the Labour Court. If the WRC adjudication officer finds that there has been an unfair dismissal, it may order one or more of the following: reinstatement; reengagement; compensation up to two years’ salary. The same remedies are available from the Labour Court on appeal.… Read the rest

Wrongful Dismissal

Dismissal

Overview A “wrongful” dismissal refers to the termination of an employment contract, in breach of its terms. Wrongful dismissal claims are taken in the Civil Courts, in common with other breaches of contract claims. In the case of the vast majority of employees, their employment contract may be terminated by relatively short notice. Under contract law, the employer may generally terminate the employment for any reason whatsoever. There need not be a good reason. If the dismissal is with the correct notice, there is no breach of contract. If no notice or insufficient notice of dismissal is given, there is a breach of contract, but the loss and consequent compensation are limited to little more than the lost salary in the notice period. Therefore, in the case of even a blatantly unfair dismissal, the general civil law leaves most employees with no effective remedy. Unfair Dismissal Under contract law principles, wrongful dismissal is available, only where the dismissal is in breach of contract. … Read the rest

Dismissal Issues

Dismissal

Constructive Dismissal Under general contract law, the innocent party is entitled to terminate a contract where there is a fundamental breach by the other party, “going to the root” of the contract. One instance of a fundamental breach is where one party communicates to the other, that he does not intend to be bound by its key terms. The innocent party may terminate the contract, be thereby discharged from further obligations and take proceedings for compensation for breach of contract. Constructive dismissal is the termination by an employee of his contract of employment, in circumstances where the conduct of the employer is so flagrant and egregious, that it justifies the employee’s immediate resignation. The circumstances must be such that is reasonable for the employee to terminate the employment contract. He may then take proceedings for wrongful dismissal (breach of contract) or unfair dismissal at his choosing. A claim for constructive wrongful dismissal requires that the employer commits a fundamental breach of contract.… Read the rest

Injunctions

Dismissal

Pre-trial Injunctions An Injunction may be granted at an early stage in proceedings to preserve the status quo until the full hearing / trial. A one-sided or so-called ex-parte application may be made without notice to the other side. They are granted only where exceptional circumstances necessitate a pre-emptive one-sided application. More commonly a pre-trial application for an injunction is made with notice to the party affected. The notice is relatively short, usually more than a number of days. The pretrial Injunction should be distinguished from the perpetual Injunction that may issue after the hearing of a case. An Injunction may issue after the full hearing of the case, irrespective of whether or not a pretrial or so-called interlocutory injunction has been granted or applied for. Conversely, a pretrial Injunction may be granted, but an Injunction may not be granted in the final proceedings. The rationale of the pretrial injunction is that it preserves the status quo until the full trial of the legal action. … Read the rest

Damages

Dismissal

Damages Principles The key principle of compensation is that the claimant should be put into the position in which he would have been, but for the breach, in so far as money can so do. This is limited by the principle of causation and the principle that loss must be such that it was or is deemed to have been, in the contemplation of the parties. This latter principle of remoteness in a contract claim restricts the level of loss that might be recovered. It is narrower that the principle and concept of remoteness in a civil wrong claim. Contract law is said to compensate for the loss which “arises naturally” out of or is the “probable” or direct consequence of the breach. There is no entitlement to a complete indemnity for all loss actually suffered as a result of the breach, however, improbable or unpredictable. The loss must be reasonably foreseeable as liable to result from the breach. … Read the rest

Minimum Notice

Dismissal

Termination by Notice There is a strong presumption that an employment contract may be terminated by either employer or employee, by giving notice to terminate. This will be so, even if the contract appears to provide for perpetual employment. In the absence of a specific clause in the contract, reasonable notice only is required to terminate the contract. Although it may be possible to terminate the contract for no reason or for a “bad” reason at common law, the employee will usually have a statutory right to minimum notice and may have a statutory claim for unfair dismissal. This latter right fundamentally enhances the rights of the employee and effectively guarantees, that the employment contract cannot be terminated without good cause. The minimum notice legislation provides for mandatory minimum notice periods for the termination of employment contracts. Minimum notice legislation overrides employment contracts so as to provide minimum notice periods. The contract will apply if it allows for greater rights.… Read the rest

General Issues

Equality

Background to Equality Protections The Irish Constitution contains a guarantee of equal treatment. However, the courts have interpreted the protection narrowly. It allows, to a significant extent, the treatment of persons with references to differences in relevant circumstances. The Constitutional protection applies to public sector entities only. It prohibits insidious and arbitrary discrimination only. Apart from a limited number of cases, the equality clause in the Irish Constitution has not been widely deployed. Gender Equality is enshrined in the European Union founding treaty. The right to equal pay for work of equal value for men and women is specifically provided for. Ireland was obliged to give effect to anti-discrimination legislation in the area of equal pay and equal treatment in employment on acceding to the European Economic Community. A famous case in 1975 decided that the gender equality protection in the EEC Treaty was directly applicable so that it invalidated the inconsistent national law.… Read the rest