The Employment Law Review: Third Edition

By John Dunne1

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 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:

a the Industrial Relations Acts, 1946–2004;

b the Redundancy Payments Acts, 1967–2007;

c the Protection of Employment Act 1977;

d the Minimum Notice and Terms of Employment Acts, 1973–2001;

e the Unfair Dismissals Acts, 1977–2007;

f the Terms of Employment (Information) Acts, 1994 and 2001;

g the Maternity Protection Acts, 1994 and 2004;

h the Organisation of Working Time Act 1997;

i the Employment Equality Acts, 1998–2004;

j the National Minimum Wage Act 2000;

k the Protection of Employees (Part-Time Work) Act 2001;

l the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003;

m the Protection of Employees (Fixed-Term Work), Act 2003;

n the Safety, Health and Welfare at Work Act 2005;

o the Employees (Provision of Information and Consultation) Act 2006;

p the Employment Permits Act 2006; and

q the Safety, Health and Welfare at Work (General Application) Regulations 2007.

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 infra.

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 €6,350 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 €38,092, although in circumstances where a case has been appealed to the Circuit Court from the Employment Appeals Tribunal ('the 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 €38,092, 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 Enterprise, Trade and Employment 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 1998–2004. 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 Department of Enterprise, Trade and Employment

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 1946–2001, 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 Enterprise, Trade and Employment and for the Department of Justice, Equality and Law Reform.

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

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 earlier this year, 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.

II YEAR IN REVIEW

As has been the case in recent years, 2011 was a difficult year for the Irish economy, although it has proven itself resilient in very difficult circumstances, with the export sector in particular performing well. An extremely austere budget in December 2010, however, coupled with continued uncertainty across the eurozone, has contributed to ongoing difficulties for the economy, and in particular for economic growth. Continued uncertainty regarding the longer term has left the labour market in a state of flux and has prevented a return to growth in many sectors. While redundancies have...