Ireland: The Employment Law Review: Fifth Edition

I INTRODUCTION

The employment relationship in Ireland is regulated by an extensive statutory framework, much of which finds its origin in European Community law. The Irish Constitution, the law of equity and the common law remain relevant, however, particularly in relation to applications for injunctions to restrain dismissals and actions for breach of contract. The main (although not exhaustive) legislation in the employment law area in Ireland includes the following statutes:

  1. the Industrial Relations Acts 1946–2012;
  2. the Redundancy Payments Acts 1967–2007;
  3. the Protection of Employment Act 1977;
  4. the Minimum Notice and Terms of Employment Acts 1973–2001;
  5. the Unfair Dismissals Acts 1977–2007;
  6. the Terms of Employment (Information) Acts 1994 and 2001;
  7. the Maternity Protection Acts 1994 and 2004;
  8. the Organisation of Working Time Act 1997;
  9. the Employment Equality Acts 1998–2011;
  10. the National Minimum Wage Act 2000;
  11. the Protection of Employees (Part-Time Work) Act 2001;
  12. the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003;
  13. the Protection of Employees (Fixed-Term Work) Act 2003;
  14. the Safety, Health and Welfare at Work Act 2005;
  15. the Employees (Provision of Information and Consultation) Act 2006;
  16. the Employment Permits Acts 2003 and 2006;
  17. the Safety, Health and Welfare at Work (General Application) Regulations 2007; and
  18. the Protection of Employees (Temporary Agency Work) Act 2012.

Employment rights under Irish law can be enforced by any one of a variety of statutory tribunals and bodies, depending on the nature of the particular claim, or by the civil courts in appropriate cases. The process of determining which body or court will have jurisdiction in a particular case will depend on the legislation under which the claim is being pursued (or whether or not it is being pursued at common law), although employees will frequently have a choice of forum.

In general terms, employer's liability (i.e., personal injury) claims and claims of breach of contract are dealt with in the civil courts, as are applications for injunctive relief in relation to employment matters, whereas statutory claims (i.e., those made, for example, under the Unfair Dismissals Acts 1977 to 2007 or the Organisation of Working Time Act 1997) are heard by any one of the various bodies outlined below.

i Civil courts

The civil judicial system in Ireland is tiered, based on the monetary value of particular claims. At the lowest level, the District Court deals with claims not exceeding €15,000 and this court rarely hears employment-related disputes. Also the District Court has no equitable jurisdiction, and cannot therefore hear applications for injunctive relief. The next level is the Circuit Court, the jurisdiction of which is generally limited to awards up to €75,000, although in circumstances where a case has been appealed to the Circuit Court from the Employment Appeals Tribunal (EAT), it has jurisdiction to exceed this limit and make awards up to the jurisdictional level of the EAT. The Circuit Court also has potentially unlimited jurisdiction in relation to gender equality cases. Where the sums involved in a contractual claim exceed €75,000, the action must be brought in the High Court, which has unlimited jurisdiction. Only the Circuit and High Courts can hear applications for injunctive relief.

ii Labour Court

The Labour Court is principally involved in the resolution of industrial disputes involving groups of employees but also has jurisdiction to hear certain individual claims relating to equality, organisation of working time, national minimum wage entitlements, part-time work and fixed-term work. The Labour Court generally only has an appellate jurisdiction and will not, other than in certain limited circumstances, hear a dispute until it has received a report from the Labour Relations Commission, stating that the body cannot resolve the matter and that the parties require the Labour Court's assistance. The Labour Court, having investigated a trade dispute, may make a recommendation setting out its opinions on the merits of the dispute and the terms on which it should be settled. The Court's recommendation is not legally binding on either party, except in cases referred to it under the Industrial Relations (Amendment) Act 2001 where the employer concerned does not engage in collective bargaining.

In relation to the individual claims referred to above, a determination of the Labour Court is legally binding on the parties, such as an award of compensation or reinstatement.

iii Rights Commissioner Service

The Rights Commissioner Service is housed within the Labour Relations Commission. Rights Commissioners are empowered to investigate disputes, grievances and claims that individuals or small groups of employees refer under various employment rights legislation. Rights Commissioners issue their findings in the form of recommendations or decisions, which are binding or non-binding depending on the statutory provision under which the claim was referred in the first instance. A dissatisfied party may, however, appeal to the Labour Court, or in some cases the EAT, against a Rights Commissioner's recommendation or decision. The decision of the Labour Court or the EAT in relation to such appeals is binding on the parties.

iv The Employment Appeals Tribunal

The EAT is the main forum for a number of statutory claims, including those in respect of minimum notice, unfair dismissal and redundancy payments. The EAT investigates unfair dismissal cases where the parties object to the claim being heard by a Rights Commissioner or where the decision of a Rights Commissioner is being appealed. The EAT's decision is called a 'determination' and is legally binding. In unfair dismissal cases a full appeal to the Circuit Court on the facts is available to either of the parties. In most other cases, the EAT's determination may be appealed to the High Court, but only on a point of law. The Minister for Jobs, Enterprise and Innovation can also refer a point of law to the High Court at the request of the EAT.

v Equality Tribunal

The Equality Tribunal is the forum of first instance for the investigation and adjudication of all complaints of discrimination in relation to terms and conditions of employment and occupational pension schemes. The Equality Tribunal can also attempt to mediate such disputes at the option of the parties. In particular, the Equality Tribunal has jurisdiction to hear claims concerning any of the nine grounds upon which discrimination is prohibited under the Employment Equality Acts 1998–2011. In practical terms, an Equality Officer will consider submissions from both parties in advance, before arranging a hearing of the case, to enable him or her to reach a decision that is binding on the parties. The decision may be appealed to the Labour Court.

vi Labour Inspectorate of the National Employment Rights Authority

The Labour Inspectorate has responsibility for the enforcement of employers' obligations in relation to the rights of employees as provided for by the Organisation of Working Time Act 1997, the National Minimum Wage Act 2000, the Industrial Relations Acts 1946–2012, the Protection of Young Persons (Employment) Act 1996 and the Payment of Wages Act 1991. It also has a role in relation to record inspections and information gathering for other sections of the Department of Jobs, Enterprise, and Innovation, and for the Department of Justice and Equality.

vii The National Employment Rights Authority

As part of the government's agreement with the Irish Congress of Trade Unions (ICTU) in the last round of national partnership talks, the Office of the Director for Employment Rights Compliance was established, later renamed the National Employment Rights Authority (NERA). NERA's primary purpose is to promote a national culture of employment rights compliance in the labour market and to assume responsibility for the enforcement of employees' rights. Once it is put on a statutory footing, employees will be able, inter alia, to make complaints regarding non-compliance in a general way to NERA, provided such complaints are made in good faith, which will then be able to prosecute defaulting employers. NERA will also assume responsibility for the Labour Inspectorate units who will investigate non-compliance in a range of areas including annual leave, wages, working hours, notice, redundancy and dismissal. As an alternative to prosecution, and as currently envisaged, NERA may inform the employer and affected employees of any breaches identified and may also inform the latter of their options for redress, including the rectification of the matter in the workplace and the option of seeking a hearing before a Rights Commissioner. While it had been expected that NERA would be given statutory recognition in early 2012, the Employment Law Compliance Bill, through which this was to be achieved, has made no further progress through the legislature and does not appear to be high on the new government's list of priorities.

The government recently announced its intention to restructure the specialist fora in which employment disputes are litigated, as a result of which it is widely expected that those listed above (subsections ii to vii, supra) will be replaced by a more streamlined system over the next 12 to 24 months.

II YEAR IN REVIEW

There was a renewed sense of buoyancy and cautious optimism in Ireland in 2013. Indications of recovery in the Irish economy continue to appear. Recruitment agencies reported an upswing in demand, there has been an increase in commercial property leasing, and an improvement in exports. There has also been a drop in the unemployment rate in Ireland, decreasing to 13.2 per cent in October of 2013 from 15.1 per cent in January of 2013.

There have been a number of developments in the statutory employment law framework recently. The Redundancy Payments Acts 1967–2007 were further amended, whereby the rebate on statutory redundancy payments available to employers from the Department of Jobs, Enterprise and Innovation was abolished with effect from 1 January 2013. Employers had previously received a rebate of 60 per cent up to 2011. This had been reduced to 15 per cent in 2012. The abolition has increased severance costs for employers, affecting the feasibility and level of ex gratia payments which employers are able to pay. Detractors of the abolition have criticised that this makes it more difficult for companies to make the changes needed to stay afloat and will have a particularly disproportionate impact on those trying to restructure their businesses for future growth.

On 8 March 2013 the European Union (Parental Leave) Regulations 2013 (SI 81/2013) transposed the provisions of the revised Parental Leave Directive (EU Council Directive 2010/18/EU). Under the Regulations, the entitlement to unpaid parental leave has been increased from 14 to 18 weeks per child. The Regulations also give parents a right to request a change in working hours for a set period on return from parental leave. Employers are not required to grant it, but under the Regulations they must now at least consider it. Parents can avail of the leave for each child under eight, but are limited to 18 weeks per year if they have more than one child except in the case of twins.

The much anticipated Protected Disclosures Bill 2013 was published in July. The Bill builds on existing provisions regarding whistleblowing contained in various pieces of sectoral legislation. Sectoral whistle-blowing provisions currently exist in 16 Acts of the Oireachtas (the Irish parliament) including the Health Act 2007, the Employment Permits Act 2006, the Protections for Persons Reporting Child Abuse Act 1998 and the Central Bank (Supervision and Enforcement) Act 2013, among others. The Bill is intended to provide for the protection of workers who make disclosures of certain information in the public interest and to provide for related matters. The Bill, in its current form, will apply to both public and private sectors. It provides for a 'stepped' disclosure process to make a 'protected disclosure'. It also provides safeguards for workers against detriment with respect to any term or condition of his or her employment, immunity against civil liability and in certain circumstances immunity against criminal liability. The Bill provides workers with an avenue of redress if they suffer detriment as a consequence of having made a protected disclosure. There is much to consider with this Bill given its broad application and the potential to add administrative and litigious burdens on employers. The Bill is currently going through the various stages of the Oireachtas, and is expected to be enacted during 2014.

A general statutory provision change which affected the employment law framework was the amendment to the monetary jurisdiction limits contained in the Courts and Civil Law (Miscellaneous Provisions) Act 2013. On 18 July 2013 the Circuit Court limit was increased from €38,092 to €75,000 and the District Court limit increased from €6,384 to €15,000. The Act also restricted the Circuit Court limit to €60,000 for personal injury actions.

Changes were also introduced in the area of business immigration. The pilot Atypical Working Scheme was launched on 2 September 2013 by the Department of Justice and Equality (Irish Naturalisation and Immigration Service), in conjunction with the Department of Jobs, Enterprise and Innovation. The Scheme provides a streamlined mechanism to deal with atypical, short-term employment where the nature of work is not governed by the Employment Permits Acts or by current administrative procedures under the Employment Permits Acts.

The Atypical Working Scheme applies to non-EEA nationals who, in certain circumstances, are required by an organisation based in the state to undertake short-term contract work (90 days) where a skill shortage has been identified; to provide a specialised or highly skilled work to an industry, business or academic institution; to facilitate trial employment in respect of an occupation on the Highly Skilled Occupations List and to facilitate paid internships in respect of non-EEA full-time students studying outside the state (excluding medical internships). Ireland is unique and innovative among EU Member States in piloting such a scheme. There is currently no indication as to how long the scheme will run or whether it will be an indefinite programme.

To read this Review in full, please click here.

Originally published in The Employment Law Review, 5th edition by Law Business Research Ltd.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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