An Overview of Irish Employment Law
Paula Murphy, Solicitor
Saturday 2 November 2013
IRISH DENTAL HYGIENIST ASSOCIATION
CONFERENCE 2ND NOVEMBER 2013
EMPLOYEE
-vINDEPENDENT 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
HOW DO WE IDENTIFY AN EMPLOYEE?
1. Mutuality of Obligation test
2. Control test
3. Integration test
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
-vPractice 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 PRACTICE
Is there a Mutuality of Obligation?
YES
Consider:
i. Control
ii. Title
iii. Revenue Situation
iv. Ownership of material
v. Insurance etc.
NO
Not an Employee
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
 Terms of Employment (Information) Acts  Unfair Dismissals Acts 1977 to 2007
1994 to 2001
 Redundancy Payments Acts 1967 to 2007
 Employment Equality Acts 1998 to 2007
 Protection of Employment Acts 1977 to
 Payment of Wages Act 1991
 Minimum Wage Act 2000

 Maternity Protection Acts 1994 to 2004

 Adoptive Leave Acts 1995 and 2005
 Parental Leave Acts 1998 and 2006

 Carer’s Leave Act 2001

 Protection of Employees (Part-Time Work)
Act 2001
 Protection of Employees (Fixed-Term
Work) Act 2003
 Minimum Notice and Terms of
Employment Acts 1973 to 2001
2007
Industrial Relations Act 1946 to 2004
Employees (Provision of Information and
Consultation) Act 2006
Transfer of Undertakings Regulations
Organisation of Working Time Act 1997
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 (FIXEDTERM 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