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35 Cards in this Set
- Front
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Sources of Employment Law |
TheConstitution CommonLaw Statute Collective Bargaining |
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Employment Law |
Sub-setof the law of contract, but one to which various employment law provisionsapply Lawdeals with the employment relationship and often protect the employee Thereare also European Union initiatives, aimed at improving the situations ofemployees and seeking to maintain a level playing field between the employerand the employee |
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Employees v Independent Contractors |
Thelaw distinguishes between a person who is an employee and a person who providesservices under a contract for services Aperson who is an employee has a contract of service(contract of employment) Aperson who provides services is an independent contractorand is undera contract for services Contrastis best illustrated by the difference between you employing a chauffeur(employee) and contracting with a taxi driver to drive you (independentcontractor) Differenceis not always so easily identified and the courts developed different tests todistinguish employees from independent contractors |
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Importance of the Distinction |
Manyemployment statutory rights exist in favour of employees which apply inaddition tothe contractual terms agreed between the employer and employee (these do notpertain to independent contractors) Employercan be vicariously liable for the acts and omissions of employees (no vicariousliability for the acts and omissions of an independent contractor) Inthe event of the winding up of a company, there is preferential treatment ofthe debts to employees (usually salary and other payments) when the assets ofthat company are being distributed It isnot intended that this protection be extended to independent contractors, whoshould rank with other unsecured creditors, if they have taken no security Thetaxation treatment of the two categories of persons also differs |
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The Tests of distinction between employees and independent contractors |
1. Control Test 2. Integration Test 3. Reality Test |
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Control Test |
1. The Control TestQuestions whether the employer controls all aspects of the employees work – have they control over the work done, the method of completion, the means employed to achieve the result, and the time and place the task is to be done Looks at the “master’s right to direct servants as to what is to be done and how to do it” (Roche v. Kelly (1968) IR 100) However, this test is unsuited to skilled workers who have discretion and responsibility in how they carry out their tasks – courts have moved away from this test |
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Integration Test |
This testasks whether the worker is employed as part of the business, and thework doneis integral to the business Kellyv.Irish Press (1985) Mr.Kelly had been a sports columnist with the newspaper on a part-time basis formore than thirty years Mr.Kelly was also a civil servant Hesubmitted material during eleven weeks of the soccer season Thesports editor had ultimate control of the content of the piece and copyrightvested in the newspaper TheCircuit Court held that Mr. Kelly was not an employee but a contractor, becausehe did not work all year round and the newspaper could not stop him workingelsewhere Yetit would seem that Mr. Kelly had been an integral and important part of theidentity of the newspaper and to that extent the decision shows imperfectionsin this test too |
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Reality Test |
Herethe court or tribunal consider the reality of the situation, consider all theaspects , no single one is decisive Inthe reality test all factors are given equal weight and while there is nodefinitive list of factors of be taken into account, the following can beconsidered: 1. Methodof payment of wages 2. WhetherPRSI is deducted at source 3. Thedegree of financial risk taken by the worker 4. Whetherthe worker provides their own equipment |
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Formation of the Contract of Employment |
Thecontract of employment has the same basic terms as any other contract Theadvertisement of the position is an invitation to treat, the application anoffer and the award of the position an acceptance Theemployment contract itself is a combination of express and implied terms |
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The Terms of Employment (Information) Act1994 |
Provides that an employer must give an employee a written statement of the terms ofemployment within two months ofthe employee starting work Inspite of this the contract can be validly formed orally and the penalty for noncompliance with this legislative requirement is four weeks wages ascompensation for the employee |
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What must be provided according to The Terms of Employment (Information) Act 1994 |
1. Thefull name of the employer and employee; 2. Theaddress of the employer (place where the business is carried out), the title ofthe job and the nature of the work; 3. Thedate of commencement of the employment and in the case of a temporary contract,the duration of the contract or if the contract is for a fixed term, the datethe contract will expire; 4. Therate of remuneration (pay) or the method of calculating the employee’sremuneration; 5. Detailsof whether payment of wages will be weekly, monthly or any other interval; 6. Anyterms and conditions in relation to the hours of work (including overtime); 7. Anyterms and condition in relation to paid leave; 8. Anyterms and conditions in relation to incapacity to work due to sickness orinjury and paid sick leave or pension benefits; 9. Theperiod of notice which must be given by both the employer and the employee forthe termination of the contract of employment; 10. Areference to any agreement which directly affects the terms and conditions ofthe employee’s employment. |
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Express Terms of the Contract |
Certainterms such as salary, working hours, start date, potential bonus and noticeperiods will be expressly stated Thesearenot standard in the labour market and vary from organisation to sector Restraintoftrade clauses may also be included but these can fail a challenge inlight of competition law |
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Implied Terms of the Contract |
Terms implied by Statute Law: It isnot possible to “disapply” them andany clause in a contract of employment which seeks to “contract out” of thelegal provision or dilute the implied term, will be invalid e.g. employees mustbe paid a minimum wage under the Minimum Wage Act 2000 Terms implied by the Constitution: Article 40.6.1 (iii) of the Constitution guarantees a right of freedom ofassociation e.g. right to join a trade union Terms implied by Case-Law: E.g.the courts have held that an employer must act fairly in their course ofdealings with their employee Terms implied by CustomCustom/practice: Must be clear, recurring and uninterruptedE.g.rights to sick pay, the right of an employer to suspend an employee, the rightsof employees to ex gratia termination payments |
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Other Relevant Statutory Provisions |
Paymentof Wages Act 1991 Deductionsfrom pay The Organisationof Working Time Act 1997 |
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The Payment of Wages Act 1991 |
The Paymentof Wages Act 1991 gives all employees a right to a pay slip showing the grosswage and detailing of all deductions – s. 4 A payslip is a statement in writing from the employer to the employee that statesthe total pay before tax and sets out any deductions from pay (in electronicform or hard copy) |
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Deductions from Pay |
ThePayment of Wages Act 1991 refers to situations where either deductions are madefrom pay or the employee is required to make a payment to the employer |
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The Organisationof Working Time Act 1997 |
Statesthat the maximum average working week for many employees cannot exceed 48 hours Thisdoes not mean that a working week can never exceed 48 hours, it is the averagethat is important Theaverage may be calculated in one of the following ways:Over4 months for most employees Over6 months for employees working in the security industry, hospitals, prisons,gas/electricity, airport/docks, agriculture and employees in businesses whichhave peak periods at certain times of the year such as tourism Over12 months where there has been an agreement between the employer and theemployees to this effect Thecalculation of 48 hours does not include annual leave, sick leave ormaternity/adoptive/parental leave Thelegislation also lays down rules for night workers, minimum breaksand rest periods Thereare also special provisions in relation to Sunday working -if you do Sundaywork your entitlement to extra pay may be agreed between you and your employer Underthe Organisation of Working Time Act, if there is no agreement about your pay,your employer must give you one or more of the following for Sunday working: -Areasonable allowance -Areasonable pay increase -Reasonablepaid time off work (reasonable depends on the individual case) |
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Overtime |
Overtimeis work done outside normal working hours Thereis no statutory obligation on employers in Ireland to pay employees for workcompleted in overtime However,many employers do pay employees higher rates of pay for overtime Your contractof employment should state if you are required to work overtime and the ratesof pay if you are to be paid |
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Records |
Underthe Organisation of Working Time (Records) (Prescribed Form andExemptions) Regulations 2001 your employer is required to keep detailedrecords of your working hours |
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Organisation of Working Time Act 1997 |
asamended, which provides that an employee shall be entitled to paid annual leaveequal to:20days in a year in which he/she works at least 1, 365 hours; Part-timeemployees: 8% of the hours worked in a leave year OR 1/3of a working week for each month in which the employee worked 117+ hours alsosets out nine public holiday entitlements which an employee is entitled to ifthey have worked 40 hours in the previous 5 weeks: Paidon the day of the holiday, or Paidday off that month, or Extraday’s annual leave, or Extraday’s pay Note:The employer decides which of the above applies |
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The9 public holiday entitlements are |
1. ChristmasDay 2. St.Stephen’s Day 3. NewYear’s Day 4. St.Patrick’s Day 5. EasterMonday 6. Thefirst Monday in May 7. Thefirst Monday in June 8. Thefirst Monday in August 9. Thelast Monday in October Note:The Provisions of the Organisation of Working Time Act 1997 applies to allemployees except members of the Defence forces and members of An GardaSiochána, sea fishers and others who work at sea, a doctor in training and anemployee living with their employer |
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Employer’s Duties |
1. Duty to Provide for Employee’s Safety: Thiswas a traditional common law duty which has since been supplemented bylegislation but an employer’s common law liability remains e.g. The SafetyHealth and Welfare at Work Act 2005 2. Duty regarding References: Anemployer does not owe apositive duty to an employee to provide a reference Howeverif an employer chooses to provide a reference then it must be done with care Anunjustified negative reference may give an employee an action in the tort ofdefamation 3. Payment of Remuneration: Anemployer is bound to pay remuneration where there is an agreement, eitherexpress or implied to that effect Aright of remuneration is implied when the employee carries out the work undercircumstances where pay is expected Atcommon law the amount of remuneration payable is a matter of agreement betweenthe parties and these negotiations normally occur when the prospective employeeis being offered the job |
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theNational Minimum Wage Act, 2000 |
thereis a national minimum hourly rate of pay (Budget2016:under SI 442/2015 from 1 January 2016 the statutory minimum wage will increaseto €9.15 from €8.65 per hour) |
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The employee’scommon law implied duties include: |
1. Duty to Exercise Skill and Care Themeaning of this will depend on the facts of a particular circumstance 2. Duty to Act in Good Faith and PreserveConfidentialityAnemployee is bound to act in good faith when dealing with the business of theemployer and third parties and to preserve the confidentiality of the business 3. Duty to Obey Orders: In Harteryv.Welltrade (Middle East) Ltd (1978) Theplaintiff was on holiday when an emergency situation developed at his place ofemployment Herefused to return from holiday to deal with the serious problems which hadarisen Onhis return to work he was dismissed and sued for wrongful dismissal - actionfailed Thecourt held that in a genuine emergency,the order to return to work was not unreasonable and stressed the duties of anemployee as well paid as the plaintiff had been Suggeststhat the duty to obey orders will vary depending on the position held by theemployee |
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Termination of the Contract |
1.Termination by Agreement with Notice 2.Termination by Death of the Employer or Employee 3.Termination by Frustration 4.Termination by Insolvency 5.Termination by Breach 6.Passage of Time 7.Termination by Notice |
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Termination by agreement with notice |
Theending of a contract of employment is most often achieved without any breach ofits terms Acontract can be terminated by either party giving notice required by the termsof the contract, or by giving reasonable notice where none is specified in the contract Whatis reasonable depends on circumstances such as nature of the work, the methodof payment and the custom of the trade It isopen to an employer to pay wages in lieu of notice subject to protection givento employees under the Unfair Dismissals Acts |
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Termination by Death of the Employer or Employee |
Deathof either the employer or the employee will end the contract of employment,unless there is express or implied provision to the contrary Thisdoes not apply in the employer’s case where the employer is a company which iscapable of having perpetual existence Anyliabilities arising under the contract of employment are not extinguished upondeath of either party Forexample, any outstanding pay owed to an employee who has died must be paid tothe estate of the deceased employee |
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Termination by frustration |
Ifeither the employer or the employee is unable to perform their part of thecontract due to the circumstances outside of their control, the contract willbe terminated due to frustration Forexample, illness may cause the frustration of the contract if it renders futureperformance impossible or fundamentally different from that envisaged by theparties when they entered into employment Anemployee getting a prison sentence may also frustrate the contract ofemployment |
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Termination by Insolvency |
Insolvencydoes not automatically terminate the contract BUT… Ifthe employer becomes insolvent, it will be unable to pay wages to the employeesand so the employee will have to make a claim in liquidation or bankruptcyfor remuneration outstanding, and in the absence of proper notice, a claim forwrongful dismissal Theymay also lodge a claim for redundancy Anorder for compulsory liquidation of a company will terminate the contract ofemployment of all of the employees of the company However,a voluntary winding-up will not automatically terminate the employee’s contractif the liquidator chooses to carry on the business of the company |
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Termination by Breach |
Acontract of employment will be terminated by breach if the employer dismissesthe employee without notice when the employer has not sufficient justificationfor so doing or if the employer breaches some fundamental condition of thecontract |
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Passage of Time |
Itmay be specified in a short term and casual contract that the contract willterminated on a certain expressed date |
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Termination by Notice |
Underthe Minimum Notice and Terms of Employment Act, 1973 where an employee hascompleted 13 weeks of continuous service with an employer, the employee becomesentitled to receive a minimum notice period before terminating the contract |
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Termination by Notice sliding scale |
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Redundancy |
EmployeesEntitlement to BenefitWhereyou lose your job due to circumstances such as the closure of the business or areduction in the number of staff this is known as redundancy However,you and your employer may agree a redundancy payment above the statutoryminimum, and in such circumstances, employees who have not reached thestatutory minimum period of service may also receive a paymentForexample, statutory redundancy only applies to employees with twoyears' service An employermight agree to pay a lump sum to employees with less than two years' service Thispayment arises through agreement and not through a statutory entitlementEmployerrebate abolition: -There will be no statutory redundancy employer rebate where the date ofdismissal due to redundancy is on or after 1 January 2013 Wherethe date of dismissal occurred in 2012 the employer rebate is 15% - if the dateof dismissal was in 2011 or earlier the employer rebate is 60% Thestatutory redundancy payment is a lump-sum payment based on the pay of theemployee Alleligible employees are entitled to: -Twoweeks' pay for every year of service over the age of 16 and -Onefurther week's pay Theamount of statutory redundancy is subject to a maximum earnings limit of €600per week (€31,200per year) Payrefers to your current normal weekly pay including average regular overtime andbenefits-in-kind, but before tax and PRSI deductions, that is your grosspayThestatutory redundancy payment is tax-free |
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The Redundancy Payments Acts 1967-2014 |
provides a minimum entitlement to a redundancy payment for employees who have a setperiod of service with the employer Notall employees are entitled to the statutory redundancy payment, even where aredundancy situation exists |
