Answer ... The main statutory sources of employment and labour law are:

• the Unfair Dismissals Acts 1977 to 2015;
• the Employment Equality Acts 1998 to 2021;
• the Redundancy Payments Acts 1967 to 2022;
• the Protection of Employees (Fixed-Term Work) Act 2003;
• the Protection of Employees (Part-Time Work) Act 2001;
• the Protected Disclosures Act 2014;
• the Safety, Health and Welfare at Work Acts 2005 to 2014;
• the Organisation of Working Time Act 1997;
• the Terms of Employment (Information) Acts 1994 to 2014; and
• the Industrial Relations Acts 1946 to 2019.

Answer ... Under the Terms of Employment (Information) Acts 1994 to 2014, employers must provide employees with key terms and conditions of employment within five days of commencing employment. These include:

• the full name of the employer and the employee;
• the address of the employer;
• the expected duration of the contract (where the contract is temporary or fixed term);
• the rate or method of calculating pay; and
• what the employer reasonably expects the normal length of the employee’s working day and week will be.

An employer that does not comply with this requirement will be guilty of an offence and liable for a fine of up to €5,000 or a term of imprisonment of up to 12 months, or both. Employees with one month’s service may claim up to four weeks’ compensation for this breach.

An employer must also give an employee a written statement of his or her terms of employment within two months of the commencement of employment. If an employer does not comply with this requirement, employees are entitled to up to four weeks’ compensation. This written statement of terms must contain:

• the full names of the employer and the employee;
• the address of the employer;
• the place of work;
• the job title;
• the commencement date, the expected duration of the contract (if temporary) and the expiry date (if fixed term);
• reference to any registered employment agreement or employment regulation order that applies to the employee;
• the rate of calculation of the employee’s remuneration;
• details stating that the employee may request a written statement of the employee’s average hourly rate of pay;
• for any pay reference period as provided in that section, the length of the intervals between the times at which remuneration is paid – whether a week, a month or any other interval;
• any terms or conditions relating to:
• • hours of work (including overtime);
  • paid leave (other than paid sick leave);
  • incapacity to work owing to sickness or injury and paid sick leave; and
  • pensions and pension schemes;
• the period of notice that the employee is required to give and entitled to receive to terminate the contract of employment or the method for determining such periods of notice; and
• a reference to any collective agreements that directly affect the terms and conditions of the employee’s employment.

Answer ... Employment contracts are commonly used at all levels. These include:

• permanent contracts;
• fixed-term contracts;
• specified purpose contracts;
• part-time contracts;
• contracts for agency workers; and
• contracts for other casual workers.

Employers must provide employees with a written statement of the terms and conditions of employment. The information required to be provided and the timelines within which the information must be provided are set out under question 1.2.

Certain terms of employment may be implied into the contract and, together with the express terms set out in the contract, can form the contract of employment. Terms may be implied into a contract of employment through:

• custom and practice;
• business efficacy;
• the conduct of the parties;
• the ‘officious bystander’ test; or
• operation of law.

Whether a term is implied into a contract of employment will depend on the specific circumstances of the case.

Answer ... Parental leave is governed by national law. The Parental Leave Acts 1998–2019 govern the law relating to parents’ rights to take leave to care for their children (and force majeure leave, which relates to exceptional leave required in emergency situations).

Parental leave applies to the natural or adoptive parent of a child, or a person acting in loco parentis to a child. Qualifying employees are currently entitled to a period of 26 weeks’ unpaid leave for the purposes of caring for a child up to the age of 12. If a child has a disability or a long-term illness, parental leave may be taken up to the child’s 16th birthday.

Generally, a parent must have worked for the employer for at least a year to qualify for parental leave.

In addition to parental leave, other statutory entitlements for parents include:

• parent’s leave;
• maternity leave;
• adoptive leave; and
• paternity leave.

Parent’s leave entitles each parent to five weeks’ leave during the first two years of a child’s life or, in the case of adoption, within two years of placement of the child with the family. This will increase to seven weeks from July 2022. Parents may also qualify for a payment paid by the state called ‘parent’s benefit’, during parent’s leave, paid at €250 per week. An employer does not have to pay employees while on parent’s leave, although some may ‘top up’ the parent’s benefit.

The Maternity Protection Acts 1994 and 2004 grant employees the right to leave during their pregnancy and after the birth of their child, and include a number of other entitlements. As with parent’s leave, there is no statutory right to payment from the employer during maternity leave. Some employers may continue to pay their employees while they are on maternity leave, but this is a contractual right only and accordingly employers may impose conditions on the receipt of any such pay (eg, a clawback provision if the employee does not return to work). Statutory maternity leave lasts for up to 42 weeks. It is split into:

• ordinary maternity leave – the first 26 consecutive weeks; and
• additional maternity leave – a further period of 16 weeks.

During ordinary maternity leave, an employee may be entitled to avail of state maternity benefit, paid at €250 per week. Similar provisions apply in respect of adoptive leave. Additional maternity leave is unpaid and is optional.

The Paternity Leave and Benefit Act 2016 introduced statutory paternity leave in Ireland for the first time. The legislation applies to relevant parents of children born or adopted after 1 September 2016, other than the mother of the child. For same-sex couples, one parent must be selected as the relevant parent for the purposes of paternity leave.

Eligible employees are entitled to a block of two weeks’ leave from work. State paternity benefit is payable during paternity leave at €250 per week. As with maternity leave, there is no statutory right to payment from the employer during paternity leave, but some employers may continue to pay their employees while they are on such leave. Paternity leave must be taken within 26 weeks of the birth or adoption of the child and in a single continuous block.

Answer ... Parental leave can be taken for each child as a continuous period of 26 weeks or in two separate periods of not less than six weeks, or as otherwise agreed with the employer. There must be a minimum of 10 weeks between each period if leave is being taken in two periods.

Where there is an entitlement in respect of two or more children, the employee cannot take more than 26 weeks in any 12-month period unless the employer agrees. This restriction does not apply to multiple births (eg, twins, triplets).

Leave is not transferable between mother and father, unless both parents work for the same employer, in which case the employer can consent to transfer up to 14 weeks of parental leave to the other parent.

Parental leave is unpaid. Employees are not entitled to remuneration or additional benefits during parental leave. There is no state-paid parental leave benefit.

Employees accrue annual paid leave and paid leave in respect of public holidays during periods of parental leave. If an employee becomes ill during a period of parental leave and wishes to postpone parental leave and instead go on sick leave, he or she must notify the employer in writing and provide evidence of his or her illness.

Other than the right to remuneration, employees’ employment rights are not affected by taking parental leave. The employment status of the employee is protected during parental leave. Leave does not constitute a break in service. An employee who is dismissed in relation to his or her entitlement to take parental leave can initiate proceedings under the Unfair Dismissals Acts 1977 to 2015.

If an employee claims that he or she has been discriminated against on grounds of taking parental leave, or has been penalised or victimised as a result of exercising his or her entitlements under the legislation, he or she can bring a claim to the Workplace Relations Commission within six months of the alleged discriminatory act/penalisation/victimisation/dismissal.

Answer ... Ireland has traditionally had a voluntarist system of industrial relations. Workers have a constitutional right to join a trade union. However, there is no legal obligation on an employer to recognise or engage with a trade union for the purposes of negotiations on pay and work conditions. Many employers, both small and large, choose to deal directly with their employees and therefore do not recognise trade unions.

Answer ... The Data Protection Acts 1988 to 2018 ensure the fair and lawful processing of personal data. The acts provide that personal data must be:

• processed fairly and lawfully;
• collected and processed for one or more specified, explicit and legitimate purposes;
• adequate, relevant and not excessive;
• accurate and up to date;
• kept in a form that permits the identification of a data subject for no longer than is necessary;
• processed following the rights of the subject of the personal data;
• protected with appropriate security measures; and
• kept within the European Economic Area, unless the recipient ensures adequate data protection.

Under the Data Protection Act 2018 and the EU General Data Protection Regulation (2016/679) (GDPR), employers have certain obligations to data subjects (ie, employees). Employees must, at the time the personal data is being collected, be made aware of certain information, such as:

• the identity and contact details of the data controller;
• the purposes of processing the personal data;
• the legal basis for the processing; and
• the persons to whom the data may be disclosed.

Employees must be informed of their rights of access, rectification, erasure, restriction of processing, objection and data portability in respect of their personal data.

Employers should provide a privacy notice to satisfy their obligations under GDPR. The privacy notice should clearly inform employees about:

• their rights of access and rectification;
• the type of data that is collected about them; and
• the lawful basis for processing that data.

It should be provided at the commencement of the employee’s employment and updated if there are any changes. The privacy notice should be fully compliant with Articles 13 and 15 of the GDPR.

Under the Data Protection Act 2018 and the GDPR, employees have a number of rights, including the right to:

• receive information about the collection of their personal data;
• establish the existence of their personal data;
• access their personal data;
• rectify or erase their personal data;
• object to processing that is likely to result in damage or distress; and
• restrict the data controller from processing the data if the data is inaccurate or if they consider the processing unlawful.

As with any other data subject, these rights can be limited in certain circumstances.

Answer ... An employee is employed under a contract of service and works under the control of the employer. An independent contractor provides services under a contract for services and does not operate under the control of the party to which he or she is providing services.

The factors that a court will take into consideration in distinguishing an independent contractor from an employee will include:

• the bargaining power of the parties and whether the written contractual terms accurately reflect the reality of the relationship;
• the mutuality of obligation (ie, the employer must provide work and the employee must perform duties);
• the integration of the ‘employee’ into the business; and
• the ability or inability to use substitutes.

An independent contractor has minimal statutory rights. His or her contract may be terminated subject only to compliance with the terms of the contract which is in place. This is in contrast to an employee, who has the benefit of a wide range of statutory protections, including the right not to be unfairly dismissed, minimum notice, redundancy payments, holidays and so on.

In relation to agency workers, employers must comply with the Protection of Employees (Temporary Agency Work) Act 2012. This implements EU law to guarantee that basic employment conditions are no less favourable for temporary agency workers, and that they have the same access to facilities and opportunities as permanent staff in respect of:

• the duration of working time, rest periods, night work, annual leave and public holidays;
• pay;
• work done by pregnant women and nursing mothers, children and young people; and
• action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

Temporary agency workers must also have equal access to facilities such as childcare and must be informed of permanent employment opportunities.

Answer ... As from 1 January 2022, the national minimum wage is €10.50 per hour. This is governed by the National Minimum Wage Act 2020. Some employees, including those aged under 20, may receive sub-minimum rates.

The national minimum wage does not stop an employer from offering a higher wage. Employees cannot agree to be paid less than the minimum wage or to do unpaid work, unless they are employed by a close family relative or are on a recognised apprenticeship.

In addition, employees in certain sectors, such as the security sector and the cleaning sector, may have other minimum rates of pay. The rules for these sectors are set out in employment regulation orders and sectoral employment orders.

Answer ... Employees do not have a statutory entitlement to overtime pay.

Employees who work on Sundays are entitled to a reasonable allowance, a reasonable pay increase or reasonable paid time off work in respect of that period of work. Alternatively, employers may determine an employee’s overall pay, taking into account the fact that he or she will be required to work on Sundays. Recent case law has found that an express statement in a contract of employment that provided that working on Sundays was taken into account in the setting of an employee’s pay was sufficient to satisfy the employer’s Sunday work obligation.

Answer ... The Organisation of Working Time Act 1997 provides for a minimum period of four working weeks’ annual leave in addition to the nine public holidays in Ireland. Annual leave may be subject to the employer’s approval concerning when the leave may be taken.

Since 1 August 2015, employees on long-term sick leave accrue annual leave entitlement of up to 15 months after the end of the year in which the entitlement accrued.

Answer ... Currently, an employee does not have a statutory entitlement to be paid by his or her employer while on sick leave. This is a matter of the employer’s discretion.

It is open to an employee to apply for illness benefit, provided that he or she has sufficient social insurance contributions.

However, the government has introduced the Sick Leave Bill 2022 which, when passed into law, will introduced a statutory sick pay scheme in Ireland for the first time. Under the proposals, initially all employees will be entitled to be paid sick pay from their employer for three days per year, which is then expected to rise to five days in 2024, seven days in 2025 and 10 days in 2026.

Statutory sick leave days may be consecutive days or non-consecutive days. Sick pay will be paid by employers at a rate of 70% of the employee’s wage, subject to a daily threshold of €110. It can be revised by ministerial order in line with inflation and changing incomes.

An employee must obtain a medical certificate to avail of statutory sick pay and the entitlement is subject to the employee having worked for the employer for a minimum of 13 weeks. Once the entitlement to sick pay from the employer ends, employees in need of longer sick leave may qualify for illness benefit from the Department of Social Protection, subject to Pay-Related Social Insurance contributions.

Answer ... There is no general statutory retirement age in Ireland. However, employers may impose a mandatory retirement age if:

• this is objectively and reasonably justified by a legitimate aim; and
• the means of achieving that aim are appropriate and necessary.

Employers commonly cite intergenerational fairness and succession planning as the grounds for imposing mandatory retirement ages.

The Code of Practice on Longer Working of the Workplace Relations Commission sets out best industrial relations practice in managing the relationship between employers and employees when an employee is approaching retirement. This code of practice is now binding under Statutory Instrument 600/2017.

The current qualifying age for state pensions is 66. The government had announced plans to increase the state pension age to 67 in 2021 and 68 in 2028. However, the government deferred these changes and instead established a Pensions Commission to consider the change to the state pensions age, along with sustainability and intergenerational fairness. The commission published its recommendations in October 2021, which were then considered by a parliamentary committee. No decisions on foot of the recommendations have as yet been announced by the government.

There has been recent high-profile litigation by employees against employers enforcing mandatory retirement ages in which employees have successfully claimed that the mandatory retirement age is not objectively justified. Employers should ensure that:

• the mandatory retirement age is objectively and reasonably justified by a legitimate aim; and
• the means of achieving that aim are appropriate and necessary.

Answer ... In Ireland, discrimination is prohibited in employment under the Employment Equality Acts 1998 to 2021, which prohibit discrimination across nine discriminatory grounds:

• gender;
• marital status;
• family status;
• sexual orientation;
• religion;
• age;
• disability;
• race; and
• membership of the Traveller community.

Discrimination may be direct or indirect. Direct discrimination arises in circumstances where one person is treated less favourably than another on one of the nine discriminatory grounds. Direct discrimination is specifically prohibited under the Employment Equality Acts concerning:

• collective agreements, employment regulation orders and registered employment agreements;
• advertising;
• vocational training; and
• discrimination by employers, employment agencies, trade associations or trade unions.

Indirect discrimination arises where an employer applies a particular condition to all employees that puts certain employees at a disadvantage because of one of the discriminatory grounds. Indirect discrimination may be objectively justified by showing that it is a proportionate way of achieving a legitimate aim.

The burden of proof in employment equality cases is on the complainant. Once the complainant establishes a prima facie case of discrimination (ie, facts from which it may be presumed that there has been discrimination), the burden then shifts to the respondent to prove the contrary.

Harassment and sexual harassment are prohibited under Section 14A of the Employment Equality Acts. ‘Harassment’ is defined as any form of unwanted conduct related to any of the discriminatory grounds; and ‘sexual harassment’ is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. In both cases, the conduct must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Individuals are also protected from harassment by the Non-Fatal Offences Against the Person Act 1997, provided that:

• the action complained of is persistent; and
• a reasonable person would realise that the acts would seriously interfere with the other’s peace or privacy, or cause alarm, distress or harm.

Answer ... Discrimination is prohibited in employment under the Employment Equality Acts 1998 to 2021, which prohibit discrimination across nine discriminatory grounds:

• gender;
• marital status;
• family status;
• sexual orientation;
• religion;
• age;
• disability;
• race; and
• membership of the Traveller community.

Answer ... In addition to prohibiting discrimination, harassment and sexual harassment, the Employment Equality Acts 1998–2021 prohibit victimisation. ‘Victimisation’ is where an employee is dismissed or penalised in some other way for having:

• made a complaint of discrimination to the employer;
• been involved in any discrimination proceedings;
• helped a colleague to make a claim;
• been penalised as a result of an unfair comparison with a colleague known as a ‘comparator’ (see below);
• acted as a witness in legal discrimination proceedings;
• taken a discrimination claim to court under the acts; or
• informed an employer that he or she intends to do any of the things mentioned in any of these points.

Answer ... An employee may seek redress by referring a case to the Workplace Relations Commission – the quasi-judicial body established to investigate and decide on employment law claims, including claims of discrimination. If the alleged act of discrimination is on the grounds of gender, the employee may refer the claim to the circuit court, a higher jurisdiction than the Workplace Relations Commission. The Workplace Relations Commission has the power to investigate, recommend mediation and make legally binding decisions in relation to claims of discrimination, harassment, sexual harassment and victimisation.

Answer ... The Workplace Relations Commission may determine and provide for the following forms of redress:

• in equal pay claims, an order for compensation for the shortfall in arrears of remuneration for a failure to provide equal remuneration (for a period not exceeding three years);
• an order for equal remuneration from the date of referral of the claim;
• an order for compensation for acts of discrimination or victimisation (up to a maximum of two years’ pay or €40,000 (whichever is greater), or €13,000 where the individual is not an employee;
• an order for equal treatment in respect of whatever is relevant to the claim;
• an order that a person or persons take a course of action specified by the Workplace Relations Commission; or
• an order for reinstatement or re-engagement (in cases of discriminatory dismissal) with or without compensation.

Answer ... The remedies detailed in question 4.5 above also apply to claims of harassment and retaliation/victimisation.

As there is no specific legislation in Ireland which protects workers against bullying, it is not possible to make a legal claim directly about bullying. However, in certain circumstances, bullying complaints can be made under laws covering discrimination and harassment. In addition, the Workplace Relations Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work sets out a detailed procedure for dealing with formal and informal complaints about bullying. Although not technically legally binding, employers are advised to follow it.

Under Section 8 of the Safety, Health and Welfare at Work Acts 2005 to 2014, an employer is obliged to “prevent any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk”. If an employee believes that bullying at work has caused damage to his or her physical or psychological health, the employee may also be entitled to bring a claim for compensation for personal injury in the Irish civil courts. The Irish courts have found that employers have a common law duty to take care of their employees and ensure that they are not subjected to any improper conduct or bullying.

Answer ... An employer must have cause to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is:

• for reasons of:
• • capability;
  • conduct;
  • capacity;
  • redundancy; or
  • contravention of the law (ie, the employee’s continued employment would be illegal); or
• some other substantial reason.

Answer ... At a minimum, employers must give employees the following statutory periods of notice:

If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given. Payment in lieu of notice may be given if it is provided for in the contract of employment.

Answer ... Usually, an employee must have 12 months’ service to bring a claim of unfair dismissal.

However, no minimum period of service applies to automatically unfair dismissals. Dismissals are automatically deemed to be unfair if they result wholly or mainly from the following:

• membership or proposed membership of a trade union or engagement in trade union activities, whether within permitted times during work or outside of working hours;
• religious or political opinions;
• civil or criminal legal proceedings – whether actual, threatened or proposed – against an employer where an employee is a party or a witness;
• race, colour, sexual orientation, age or membership of the Traveller community;
• pregnancy, birth or breastfeeding, or any matters connected with pregnancy or birth;
• exercise of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental or force majeure leave; or
• a protected disclosure made under the Protected Disclosures Act 2014.

Employees who believe they have been unfairly dismissed can bring a claim to the Workplace Relations Commission. If successful, the Workplace Relations Commission may award:

• reinstatement – this means that the employee is treated as if he or she had never been dismissed. He or she will have a right:
• • to repayment for earnings lost between the date of the dismissal and the date of the hearing; and
  • to any favourable changes in the terms of employment during that period, such as a pay rise;
• re-engagement – this means that the employee is entitled to get his or her job back from a particular date, such as the date of the commission’s decision. However, he or she has no right to compensation for any loss of earnings; or
• compensation of up to two years’ remuneration (except if the employee is dismissed for making a protected disclosure, when the compensation can be up to five years’ remuneration).

Answer ... The Redundancy Payments Acts 1967 to 2022 provide for statutory redundancy payments for employees with at least two years’ continuous service.

Employees are entitled to two weeks’ pay for each year of continuous service (capped at €600 per week) plus one additional week’s pay (capped at €600 per week).

Answer ... The Workplace Relations Commission was established on 1 October 2015. It is the body to which all employment law-related disputes and complaints are referred. It offers mediation, conciliation and adjudication services. Appeals from an adjudication officer of the Workplace Relations Commission (ie, the first stage of the adjudication process) are brought before the Labour Court.

The Workplace Relations Commission also has powers of inspection and enforcement, and may visit employment premises to ensure compliance with equality and employment-related legislation.

If an employee claims to have been discriminated against on the grounds of gender, he or she may choose to take the complaint directly to the circuit court.

Answer ... An employee can bring an employment law claim to the Workplace Relations Commission by filling out the Workplace Relation Commission’s online complaint form.

The limitation periods for bringing claims to the Workplace Relations Commission are as follows:

• Unfair dismissal: Within six months of the date of termination, with a possibility to extend by up to another six months;
• Discrimination: Within six months of the most recent occurrence of discrimination, with a possibility to extend by up to another six months;
• Unlawful deduction of wages: Within six months of the date of contravention, with a possibility to extend by up to another six months; and
• Redundancy payment: Within one year of the date of termination of employment, with a possibility to extend by up to another year.

All periods of extension are for reasonable cause only.

Answer ... There has been significant movement over the past two years towards strengthening employees’ rights. Some examples include the following.

Gender pay gap reporting: The Gender Pay Gap (Information) Act 2021 was commenced on 31 May 2022. The act requires certain employers (those with over 250 employees in 2022 and 2023) to publish information relating to the pay of their employees for the purpose of showing whether there are differences in such pay referable to gender and, if so, the size of such differences.

Protected Disclosures (Amendment) Bill: The Protected Disclosures (Amendment) Bill 2022 will transpose the EU Whistleblowing Directive into Irish law and introduce significant changes to the existing protected disclosures regime, the most notable of which are:

• the extension of obligations to have a whistleblowing policy to the private sector; and
• the introduction of strict timeframes to follow up on disclosures.

The bill is making its way through the legislative process before being passed into law.

Right to request remote working: The General Scheme of the Right to Request Remote Work Bill has been published. The bill is still awaited after the general scheme was heavily criticised. The bill will provide a legal framework for requesting, approving or refusing a request for remote work. The government has committed to passing the legislation before the summer recess.

Sick Leave Bill: The Sick Leave Bill 2022 will introduce an entitlement to statutory sick leave in Ireland for the first time for employees who would ordinarily work but are incapable of doing so due to illness or injury. The bill is making its way through the legislative process before being passed into law.

Answer ... Constitutional issues arising in respect of the employment relationship, including the right to earn a livelihood, bring increased focus on natural justice and fair procedures in Ireland. This is an area that many employers (particularly international employers) may not be fully cognisant of.

Our top tip for navigating the employment regime in Ireland is to try to be proactive rather than reactive in respect of the ever-changing employment law landscape. Quite significant changes have occurred in the last number of years and the rate of change is not expected to slow.