An Overview of Irish Employment Law Paula Murphy, Solicitor

Saturday 2 November 2013

IRISH DENTAL HYGIENIST ASSOCIATION CONFERENCE 2ND

NOVEMBER 2013

EMPLOYEE

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INDEPENDENT CONTRACTOR

WHY DOES IT MATTER?Employer vicariously liable for acts of employee

Duties implied by common law into the contractual relationship

Employee entitlements under statute

Employee’s preferential creditors in winding up/receivership

Revenue implications for employee/employer

1.Mutuality of Obligation test

2.Control test

3.Integration test

HOW DO WE IDENTIFY AN EMPLOYEE?

CONTROL TEST

“…the fact of the Master’s right to direct the servant not merely as to what is to be done but how it is to be done…”

Roche –v- Kelly (1969) Walsh J.

INTEGRATION TEST

“Under a Contract for Service a man is employed as part of the business, whereas under a Contract for Services his work, although done for the business, is not integrated into it but only accessory to it”.

MUTUALITY OF OBLIGATIONS

“a continuing obligation on the employer to provide work and pay and a continuing obligation on the employee to do the work provided …”

Re Nethermere (St. Noets) Ltd –v- Taverna & Gardiner 1984 IRLR 240

OTHER CONSIDERATIONS

Written contract/intention of the parties

The Revenue situation

Does the worker work for multiple employers?

CONTRACT OF EMPLOYMENT

Written Intention of the Parties

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Practice on the Ground

Henry Denny & Sons (Ireland) Limited –v- Minister for Social Welfare [1998] I. IR 34

Castleisland Cattle Breeding Society –v- Minister for Social and Family Affairs [2004] IESC 40

Byrne –v- Securispeed UD 451/2001

“in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature”. Geoghan J – Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs [2004] IESC 40.

REVENUE SITUATIONS?

Not conclusive

However regard will be had to it particularly if the employee operated in that capacity for a number of years.

MULTIPLE EMPLOYERS

Ryan –v- Shamrock Marine (Shannon) Ltd (1990) EAT

Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs [2004] IESC 40.

EMPLOYMENT STATUS GROUP REPORT/CODE OR PRACTICEIs there a Mutuality of Obligation?

YES NO Consider: Not an Employeei.Control ii.Title iii.Revenue Situation iv.Ownership of material v.Insurance etc.

IMPLICATIONS OF BEING AN EMPLOYEE

Good or Bad?

INDEPENDENT CONTRACTOR

Freedom of Association

More control over finances

At the will of the employer

Limited statutory protections

EMPLOYEE – RELEVANT EMPLOYMENT STATUTES

PAYMENT OF WAGES ACT 1991

i. Readily encashable mode of payment

ii. Written statements of wages, contributions and deductions

iii. Protection against unlawful deduction of wages

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

i. Equal treatment to permanent employees, with respect to conditions of employees

ii. Prevents abuse arising from the use of successive fixed term/fixed purpose contracts

MINIMUM NOTICE OF TERMS OF EMPLOYMENT ACTS 1973 to 2001

13 weeks to 2 years’ service 1 weeks’ notice

2 to 5 years’ service 2 weeks’ notice

5 to 10 years’ service 4 weeks’ notice

10 to 15 years’ service 6 weeks’ notice

15 or more years’ service 8 weeks’ notice

UNFAIR DISMISSALS ACT 1977 TO 2007 (THE “UDA”)

Every dismissal is presumed to be unfair

Burden of proof is on the employer to prove the dismissal is fair

Employee entitlements after 12 months employment (unless one of specified exemptions)

DEFENCES UNDER UNFAIR DISMISSALS ACT

i. Conduct

i. Competency

ii. Redundancy

iii. Other good reason

REMEDIES UNDER UNFAIR DISMISSALS ACT

i. Reinstatement

ii. Re-engagement

iii. Compensation

REDUNDANCY PAYMENTS ACTS 1967 TO 2007

i. Compensation for loss of service

ii. Minimum statutory amount 2 weeks per year of service PLUS 1 week remuneration

iii. €600 standard ceiling for a weekly earning

iv. Entitlements arise after 2 years employment

“TUPE”

i. Protect an employee’s statutory and contractual rights in the event that a business or part of a business is transferred

ii. Obligation on employers to inform and consult with employees in the event of a proposed transfer

ORGANISATION OF WORKING TIME ACT 1991

Daily rest periods

Minimum holiday period

Maximum working hours

QUESTIONS