Law Society of Ireland Manual Employment Law

by Byrne, Gary; Kennedy, Michael; Shannon, Geoffrey; Moffatt, Jane; Ni Longain, Michelle

• ISBN13: 9780199280223
• ISBN10: 0199280223
• Edition: 2nd
• Format: Paperback
• Copyright: 2007-01-11
• Publisher: Oxford University Press

Summary

Employment Law has been written to give the trainee solicitor a thorough understanding of the principles of Irish employment law, introducing the student to the common law essentials of an employment contract as well as to the impact of the vast body of Irish and European legislation in this area. Since the publication of the first edition there have been a number of very significant developments in Irish employment legislation, including the Equality Act 2004, the European Communities (Protection of employees on transfer of undertakings) Regulations 2003 (SI 131 of 2003), the Safety, Health and Welfare at Work Act, 2005, and amendments in respect of maternity protection law in Ireland. These developments have been dealt with comprehensively by this new edition.

Author Biography

Jane Moffatt is Course Co-ordinator, Law Society of Ireland. Michael Kennedy is a Partner BCM Hanby Wallace Solicitors Geoffrey Shannon is Deputy Director of Education, Law Society of Ireland Michelle Ni Longain is Partner BCM Hanby Wallace Solicitors Gary Byrne is Managing Partner BCM Hanby Wallace Solicitors

Table of Contents

Preface	p. xvii
Authors	p. xix
Table of Cases	p. xxi
Table of Statutes	p. xxxiv
Table of Statutory Instruments	p. xli
Contracts of Employment	p. 1
Introduction	p. 1
Requirements of writing
Terms or Employment (Information) Act, 1994
Employees in Irish Law-Contract of service/contract for services	p. 3
Introduction
Written evidence of terms
Tests to be applied
A matter of degree
Employment Appeals Tribunal approach
The deemed employee
Partnerships
Shareholders/Directors-employee status
Pre-contractual matters	p. 10
Advertisement
Interviews
Conditions precedent
Implied terms	p. 14
Terms implied by statute
Terms implied by custom or practice
Collective agreements
Terms implied by law
Express terms	p. 16
Company directors	p. 48
Parties
Date of commencement
Job function
Hours of work
Place of work
Exclusive service
Probation
Term of contract
Salary/remuneration
Company car
Holidays
Sick pay
Pension
Retirement age
Grievance procedure
Disciplinary procedure
Restrictive covenants
Termination of contract
Search clause
Patents, copyrights and inventions
Share options
Bullying and harassment
E-mail, intranet and internet use
Resignation of directorships or offices on termination of employment
Proper law
Miscellaneous
Contractual provision or work practice?	p. 48
Generally
Written agreement
Variation of contract
Collective agreements and contracts of employment	p. 56
Legality of collective agreements
Tests applied
Transfer of undertakings
Applying contractual terms
Registered employment agreements
Payment of Wages	p. 61
Interpretation	p. 61
Contract of employment
Employee
Employer
Wages
Miscellaneous definitions
Modes of payment of wages	p. 64
Repeal of Trucks Acts, 1831-1896 and related enactments	p. 64
Statements of wages and deductions from wages	p. 64
Regulation of certain deductions made and payments received by employers	p. 64
Deductions permitted by statute and contract
Acts or omissions/supply of goods and services
Excluded deductions
Deficiency in or non-payment of wages
Complaints by employees in relation to contraventions of section 5 by their employers	p. 73
Generally
Time limits
Appeal from decision of rights commissioner	p. 75
Enforcement of decisions of rights commissioner and determinations of the EAT	p. 75
Powers of authorised officers	p. 76
Provisions in relation to offences	p. 76
Voidance of certain provisions in agreements	p. 76
Miscellaneous	p. 76
Working Time and Statutory Leave Entitlements	p. 77
Introduction	p. 77
Working time	p. 77
Interpretation
Application
Minimum rest periods and other matters relating to working time (Part II)
Annual leave	p. 88
Introduction
Entitlement to annual leave
Calculating entitlement
Effect of sickness
Timing of leave
Payment for annual leave
Leave not taken and accruals
Termination and holiday pay
Public holidays
Pay for a public holiday
Record keeping
Enforcement procedures
Maternity rights of employees	p. 97
Introduction
Entitlement to maternity leave
Sickness of the employee
Hospitalisation of the child
Payment during maternity leave
Employment protection and the right to return to work
Notification of intention to return to work
Pregnancy-related dismissals
Pregnancy-related illness
Paid time off for ante-natal and post-natal care
Breastfeeding breaks
Death of mother
Health and safety
Resolution of disputes
Summary of main maternity leave provisions as amended by the Maternity Protection Act 1994 (Extensions of Periods of Leave) Order 2006
Parental leave	p. 105
Introduction
Entitlement to parental leave
Manner in which parental leave may be taken
Notice provisions
Postponement, curtailment and variation of leave by the parties
Postponement by the employer
Condition of taking parental leave
Force majeure leave
Employment protection and the right to return to work
Resolution of disputes
Regulations
Adoptive leave	p. 112
Introduction
Entitlement to adoptive leave
Death of mother
Time off to attend pre-adoption classes
Postponement of leave on hospitalisation of child
Absence owing to sickness whilst leave postponed
Payment for adoptive leave
Notice provisions
Employment protection and the right to return to work
Notification of intention to return to work
Resolution of disputes
Summary of main adoptive leave provisions as amended by the Adoptive Leave Act 1995 (Extensions of Periods of Leave) Order 2006
Carer's leave	p. 119
Introduction
Entitlement to carer's leave
Manner in which carer's leave may be taken
Notice provisions
Postponement, curtailment and variation of carer's leave by the parties
Employment protection and the right to return to work
Termination of carer's leave
Resolution of disputes
Atypical Employees	p. 126
Introduction	p. 126
Agency workers	p. 126
The Employment Agency Act, 1971
Statutory protection
The implied contract of service
Draft directive
Fixed-term employees	p. 131
The Employment Equality Acts, 1998-2004
The Unfair Dismissal Acts, 1977-2001
Unfair Dismissals (Amendment) Act, 1993
The Protection of Employees (Fixed-Term Work) Act, 2003 Redundancy
Part-time employees	p. 142
Introduction
The Protection of Employees (Part-Time Work) Act, 2001
Young persons	p. 149
Migrant workers	p. 149
The Employment Permits Act, 2003
The Employment Permits Bill, 2005
Health and Safety Law	p. 151
Introduction	p. 151
Statutory regulation	p. 151
Common law	p. 153
Generally
Volenti non fit injuria
Doctrine of common employment
Contributory negligence
Evolution of modern duty of care owed by employer to employee
Safety, Health and Welfare at Work Act, 1989	p. 154
General duties imposed by the 2005 Act	p. 155
General duties of employers
General duties of employers and self-employed to persons other than their employees
General duties of employees
General duties of designers, manufacturers, importers and suppliers of articles and substances for use at work
General duties of persons who design and construct places of work
General overview of the 2005 Act	p. 161
Safety statements	p. 163
Consultation	p. 164
Health surveillance and medical fitness to work
Joint safety and health agreements
Implementation of regulations under the 2005 Act	p. 165
Safety, Health and Welfare at Work (General Application) Regulations, 1993	p. 166
Interpretation and applicability
General safety and health provisions
Workplace
Use of work equipment
Personal protective equipment
Manual handling of loads
Display screen equipment
Electricity
First aid
Notification of accidents and dangerous occurrences
Maternity Protection Act, 1994	p. 178
Safety, Health and Welfare at Work (Construction) Regulations, 1995	p. 178
Occupiers' Liability Act, 1995	p. 179
Safety, Health and Welfare at Work (Miscellaneous Welfare Provisions) Regulations, 1995	p. 179
Protection of Young Persons (Employment) Act, 1996	p. 179
Safety, Health and Welfare at Work (Children and Young Persons) Regulations, 1998	p. 180
Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations, 2000	p. 180
European Communities (Protection of Workers) (Exposure to Asbestos) (Amendment) Regulations, 2000	p. 181
Safety, Health and Welfare at Work (Pregnant Employees etc) Regulations, 2000	p. 181
Enforcement under the 1989 regime	p. 182
Health and Safety Authority
Prosecution of offences
Time limits
Future of health and safety legislation and management standards	p. 187
Generally
Duty of care
Increased expectations
Corporate responsibility
Equality and Discrimination in the Workplace	p. 190
Evolution of Irish employment equality law	p. 190
Sources of Irish employment equality law
The Equal Pay Directive
The Equal Treatment Directive
General Framework Directive
The Constitution
The EC Treaty
Equal pay
Employment Equality Act, 1977
Employment Equality Acts, 1998 and 2004	p. 199
Constitutionally repugnant provisions
Provisions of the 1998 and 2004 Acts
Gender
Marital status
Family status
Sexual orientation
Religious belief
Age
Disability
Race
Membership of the traveller community
Employer policies	p. 210
Forms of discrimination	p. 210
Indirect discrimination	p. 211
Test for indirect discrimination
Nathan v Bailey Gibson
Burden of proof
Job sharing
Proportionality
Equal pay	p. 220
European Commission code of practice
The 1998 and 2004 Acts
Associated employer
Like work
Grounds other than gender
Red circling
Sexual harassment	p. 225
Definition
Employment Equality Act, 1977
Labour Court approach
Legal action
Vicarious liability
Sexual harassment in the 1998 and 2004 Acts
Harassment other than sexual harassment	p. 232
Vicarious liability under the 1998 Act	p. 232
Positive action	p. 234
Action permitted by 1998 and 2004 Acts
Action permitted by Equal Treatment Directive
Exemptions	p. 236
Introduction
Sexual orientation
Exceptions related to the family, age or disability
Special provisions for employees with disabilities
Special exemptions for state employees
Religious ethos
Institutions	p. 238
Equality authority
Information
Enforcement and remedies
Burden of proof
Impact of the 1998 and 2004 Acts	p. 241
Introduction
Recruitment and promotion
Terms, conditions and benefits
Harassment policies
Discrimination policies
Positive action
Restraining Dismissals: Injunctions and the Contract of Employment	p. 243
Introduction	p. 243
Classification of injunctions	p. 244
Principles governing the granting of an injunction	p. 244
Serious question to be tried
Damages an adequate remedy
Balance of convenience
Injunctions in an employment context	p. 247
Restraint of trade	p. 247
Mutual trust and confidence	p. 248
Development of the injunction restraining a dismissal	p. 248
Irish developments: Fennelly
Developments post-Fennelly
Current status: 2006-20 years post-Fennelly
When will the courts grant an injunction?	p. 252
Where the dismissal is in breach of contract
Where the dismissal is ultra vires
Where the dismissal is in breach of fair procedures
Absence of grounds justifying dismissal
Where the dismissal is in breach of a constitutional right
Non-dismissal injunctions
The future?	p. 254
Wrongful dismissal at common law and statutory unfair dismissal distinguished	p. 255
Procedure to obtain an injunction	p. 256
Implications of unsuccessful application	p. 257
Unfair Dismissals	p. 258
Introduction	p. 258
Who is covered by unfair dismissal legislation?	p. 258
Who is excluded?	p. 259
Definitions	p. 259
Employee
Employee/independent contractor
Agency-supplied staff
Fixed-term and specified-purpose contracts	p. 261
Dismissal	p. 263
Generally
Indefinite suspension
Appeals
Termination
Non-renewal of fixed-term contract
Constructive dismissal
Resignations	p. 268
Date of dismissal	p. 269
Remuneration	p. 269
Calculation of remuneration
Assessment of loss
Continuity of service	p. 271
Employees working outside Ireland	p. 272
Diplomatic immunity	p. 273
Probation	p. 273
Apprentices	p. 273
Unfair dismissals	p. 275
Categories
Engaging in industrial action
Unfair dismissal and redundancy	p. 277
Strikes and lock-outs	p. 277
Procedural fairness	p. 278
General
Case law
Employee subject to criminal charges
Importance of particular circumstances
Grievance procedures	p. 281
Warnings	p. 282
Generally
Performance-related problems
Targets	p. 284
Suspension	p. 284
Disciplinary hearing	p. 285
General requirements
Criminal investigations
Dishonesty
Effect of delay
Representation-legal representation	p. 287
Standard of proof	p. 287
Generally
Irish case law
UK case law
Absence/sickness dismissals	p. 290
Generally
Illness records giving rise to dismissal
Onus of proof
Management decision
Up-to-date medical opinion
Need to dismiss
Employees injured or allegedly injured at work
Income continuance/permanent health insurance
Light work
Disclosure of outcome of medical examination
Abuse of sick leave
Competition/conflict of interest	p. 297
Generally
Family connections
Behaviour inconsistent with employer's business
Criminal convictions	p. 299
Lack of competence and poor performance	p. 299
Test of incompetence
Monitoring of employee
Intransigent employees
Temporary appointment
Conduct	p. 301
Penalty	p. 302
Contracting out and settlement of cases	p. 303
Contracting out
Duplication of claims
Discriminatory dismissals
Remedies/redress
Taxation	p. 307
Claims under unfair dismissal legislation	p. 308
Time limits
Documentation
Employment Appeals Tribunal	p. 309
Guidelines for persons representing parties before the EAT
Statutory forms to be used in application to EAT
Redundancy	p. 312
Introduction	p. 312
Definition of redundancy	p. 312
The impersonality and change requirement	p. 314
Requisite period of employment	p. 314
Dismissal by an employer	p. 315
Resignation by employee	p. 316
Lay-off and short-time	p. 316
Disentitlement to redundancy	p. 317
Notice of redundancy	p. 318
Redundancy payment	p. 318
Continuous employment	p. 319
Reckonable service	p. 320
Normal weekly remuneration	p. 320
Payments in excess of statutory requirements	p. 320
Resolution of disputes	p. 321
Collective redundancies	p. 321
Introduction
Definitions
Consultation and notification
Commencement of collective redundancies
Resolution of disputes
Trade Unions, Trade Disputes and Industrial Relations	p. 324
Constitutional position of trade union membership	p. 324
Introduction
Union recognition
Implied recognition
Relationships between trade unions
Closed shop provisions
The right to strike
Trade disputes	p. 328
Introduction
Trade union disputes and industrial action
Preconditions to lawful industrial action
The golden formula
Two case studies
Industrial relations	p. 350
Institutions
Scope
The Labour Court	p. 351
Generally
Special investigation procedures
Conciliation
Arbitration
Fair employment rules
Standard wages for areas
Appeal
Rights commissioners	p. 353
Joint Labour Committees	p. 354
Joint Industrial Councils	p. 354
Registered employment agreements	p. 354
Generally
Conditions of registration
Industrial Relations Act, 1990	p. 355
Codes of practice	p. 356
Transfer of Undertakings	p. 357
The transfer of undertakings Directives	p. 357
Transfer of Undertakings Directive 77/187/EEC
Directive 2001/23/EC of 12 March 2001
The European Communities (Protection of Employees on Transfer of undertakings) Regulations, 2003, SI 2003/131
Scope of Directive and Regulations
Who is covered by the Directive and Regulations?
Interpreting the Directive and Regulations	p. 362
The Preamble
Territorial scope
The purposive approach
Irish position
Undertakings	p. 364
Economic entity/undertaking	p. 365
Introduction
Stable economic entity
Transfer	p. 366
Introduction
Cessation and later resumption
Change of ownership
Contractual nexus between transferor and transferee
Transfer of activity
Franchises or dealerships	p. 372
Transfer of employees	p. 373
Underlying philosophy
Transfer of part of an undertaking
Part of an undertaking or a mere activity?
Stable economic entity
Spijkers criteria
Service providers	p. 376
Generally
Economic unit
Restricting transfers
Stable economic entity-Rygaard
Asset transfer
Legal transfer or merger and service provider
Date of transfer and existence of rights and obligations
Time of transfer or date of transfer?
Can employees agree changes prior to or at time of transfer?
No obligation on employees to transfer
Trade unions	p. 395
Legislative provisions
Union recognition
Implied recognition
Picketing by employees of a transferor
Transfer-related dismissals and organisational changes arising from transfer
Transfer-related dismissals
Slimming down and liability for severance costs
The ETO defence	p. 398
Generally
Changes in the workforce
Reason for dismissal-transfer or ETO?
Motivation for change
ETO and redundancy
Scope of the ETO defence
Information and consultation	p. 403
Legislative requirements
Timing
Notices
Injunctive relief
Transfer of restrictive covenants
Extent of restriction
Automatic transfer of liabilities, rights and obligations	p. 408
Generally
Benefits transferred
Pensions	p. 409
General exclusion for pensions
Insolvency	p. 409
Due diligence	p. 410
Introduction
Preliminary personnel audit
The due diligence process
Trade unions
Indemnities and warranties
Social plan
Insurance
Enforcement of and remedies under the regulations
Redress, Remedies and Forums	p. 414
Introduction	p. 414
Rights Commissioner	p. 414
Employment Appeals Tribunal	p. 415
The Labour Court	p. 415
The Labour Relations Commission	p. 415
Office of Director of Equality Investigation (Equality Tribunal)	p. 415
The Civil Courts	p. 416
The Health & Safety Authority	p. 416
Index	p. 423
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