Employment & Labour Law - The European Lawyer Reference Series, 4th Ed. 2012

The following article is taken from The European Lawyer Reference Book 'Employment & Labour Law', 4th Ed. 2012. Mason Hayes & Curran's Melanie Crowley explores Employment Law in Ireland.

  1. SOURCES OF EMPLOYMENT LAW

    1.1 What are the principal sources of law and regulation?

    The sources of employment law in Ireland are European Union law, statutes, common law, equity and the Irish Constitution. Statutes are the most significant source, particularly given the considerable amount of employment legislation that is driven by Ireland's membership of the European Union.

    Decisions and judgments of Irish courts and, in some instances, tribunals, form precedents which are usually followed pursuant to the principle of stare decisis. Judgments of courts in the United Kingdom have persuasive authority and, in practice, are widely followed. In addition, judgments of the European Court of Justice, which are supreme over judgments of the Irish courts, are hugely influential on employment law in Ireland.

    The Irish Constitution (Bunreacht na hEireann, 1937) is also central to the rights of employees, especially in matters of discipline and dismissal. Irish courts have held that the fundamental principles of natural justice apply to the employment relationship and that employees' rights to fair procedures are enshrined in the constitution. Therefore, the impact of the constitution must also be considered when reviewing employment law matters in Ireland.

    1.2 What is the order of priority of the relevant sources - ie, which take precedence in the event of a conflict?

    European Union law is supreme in Ireland and takes precedence over other sources of law in the event of a conflict.

    1.3 What are the relevant statutes and international treaties? The main employment statutes in Ireland are:

    the Redundancy Payments Acts 1967-2007; the Protection of Employment Acts 1977-2007; the Terms of Employment (Information) Acts 1994-2001; the Minimum Notice and Terms of Employment Acts 1973-2005; the Payment of Wages Act 1991; the Unfair Dismissals Acts 1977-2007; the National Minimum Wage Act 2000; the Organisation of Working Time Act 1997; the Employment Equality Acts 1998-2011; the Maternity Protection Acts 1994-2004; the Adoptive Leave Acts 1995-2005; the Parental Leave Acts 1998-2006; the Carer's Leave Act 2001; the Protection of Young Persons (Employment) Act 1996; the Protection of Employees (Part-Time Work) Act 2001; the Protection of Employees (Fixed-Term Work) Act 2003; the Data Protection Acts 1988-2003; the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003; the Employees (Provision of Information and Consultation) Act 2006; the Transnational Information and Consultation of Employees Act 1996; the Employment Permit Acts 2003 and 2006; and the Safety Health and Welfare at Work Act 2005. Important international treaties include the EC Treaty, the Treaty of Amsterdam, the European Convention on Human Rights, the Convention on the Law Applicable to Contractual Obligations (Rome Convention) and the Rome I Regulation (Regulation 593/2008).

  2. PRINCIPAL INSTITUTIONS

    There are a number of important employment law institutions in Ireland. Some of the main institutions include the following:

    Labour Relations Commission (LRC)

    The LRC was established to promote industrial relations and works in conjunction with trade unions, joint industrial councils, joint labour committees and business associations (such as the Irish Business and Employers Confederation). Amongst the services it offers, the LRC provides a conciliation service and it also provides the Rights Commissioner service outlined below.

    Rights Commissioners

    Rights Commissioners are appointed by the Minister for Jobs, Enterprise and Innovation to deal with certain trade and employment law disputes. A complaint to a Rights Commissioner is often the first avenue of redress pursued by a complainant.

    Statutes under which Rights Commissioners have authority include: Industrial Relations Acts 1946-2004; Adoptive Leave Acts 1995-2005; Carer's Leave Act 2001; Competition Act 2002; Maternity Protection Acts 1994- 2004; National Minimum Wage Act 2000; Organisation of Working Time Act 1997; Parental Leave Act 1998; Payment of Wages Act 1991; Protection of Employees (Fixed-term Work) Act 2003; Protection of Employees (Parttime Work) Act 2001; Protection of Young Persons (Employment) Act 1996; Protection of Persons Reporting Child Abuse Act 1998; Safety, Health and Welfare at Work Act 2005; Terms of Employment (Information) Acts 1994- 2001, Unfair Dismissals Acts 1977-2007; European Communities (Protection of Employment) Regulations 2000 (SI 488/2000) and European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003).

    Labour Court

    The Labour Court has jurisdiction at first instance and on appeal in a number of employment law and industrial relations matters.

    Statutes under which the Labour Court has jurisdiction include: Industrial Relations Acts 1946-2004; Organisation of Working Time Act 1997; Protection of Employees (Part-time Work) Act 2001; Protection of Employees (Fixed-term Work) Act 2003; Employment Equality Acts 1998-2011 and National Minimum Wage Act 2000.

    Employment Appeals Tribunal (EAT)

    The EAT has jurisdiction to hear certain employment law disputes, both at first instance and on appeal, most notably unfair dismissal claims. Statutes under which the EAT has authority include: Minimum Notice and Terms of Employment Acts 1973-2005; Payment of Wages Act 1991; Terms of Employment (Information) Act 1994 and 2001; Organisation of Working Time Act 1997; Adoptive Leave Act 1995; Maternity Protection Acts 1994-2004; Protection of Young Persons (Employment) Act 1996; Unfair Dismissals Acts 1977-2007; Carer's Leave Act 2001; Redundancy Payments Act 1967-2007; Parental Leave Acts 1998 and 2006; Protection of Employees (Employers Insolvency) Acts 1984-2001 and European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003).

    Equality Tribunal

    The Equality Tribunal has jurisdiction over matters concerning the Employment Equality Acts 1998-2011. Disputes can be mediated but if mediation is either rejected or is unsuccessful, then the dispute will be heard by an equality officer nominated by the Equality Tribunal.

    Health and Safety Authority (HSA)

    The HSA is responsible for monitoring compliance with occupational health and safety legislation, to include the prevention of bullying and harassment, and conducting prosecutions in the event of breaches.

    National Employment Rights Authority (NERA)

    NERA aims to increase the level of monitoring and compliance with employment rights in Ireland. Its main functions are to provide information; carry out inspections of workplaces; enforce employment rights legislation; prosecute offenders and protect young persons who are working.

    NERA was set up under the auspices of the Department of Jobs, Enterprise and Innovation. Its establishment was agreed as part of the social partnership agreement, 'Towards 2016', and the Employment Law Compliance Bill 2008 (discussed later in this chapter) is intended to place NERA on a statutory footing.

  3. ROLE OF THE NATIONAL COURTS

    In addition to the institutions noted above, the civil courts of Ireland have jurisdiction in employment matters. They hear common law actions, such as claims for wrongful dismissal and breach of contract and can provide redress in equity such as injunctive relief. The courts often have jurisdiction under statute to hear appeals from the above-mentioned institutions, usually on a point of law. The Circuit and High Courts are the most common forum for employment law disputes, though the District Court may hear enforcement proceedings (such as under section 20, Protection of Young Persons (Employment) Act 1996) and the Supreme Court retains its jurisdiction as the national court of final instance.

  4. EMPLOYMENT STATUS AND CATEGORIES OF WORKER

    4.1 What defines employment status (ie, whether an individual is employed or self employed)?

    There is a distinction in law between employees and independent contractors. This distinction is very important as only employees are protected by employment law. An employee works under a contract of service for an employer, under which he or she contracts to provide his or her own labour, skill and services in return for remuneration. An independent contractor, meanwhile, works under a contract for services, and provides his or her labour on a self-employed basis in return for remuneration.

    4.2 What is the relevance of the distinction?

    The classification of a contract as one of service or for services is not always clear. It is a question of substance which is not decided by the labels used by the parties to describe the relationship (See Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] ELR 36). Some principal features of the employer/employee relationship as found by the courts are the following:

    the employer exercises a sufficient degree of control over the worker; the worker must perform the contract personally and cannot delegate to another; the worker is an integral part of the workforce; and income tax (PAYE) and Pay Related Social Insurance (PRSI) are deducted from the worker's remuneration by the employer. In contrast, factors which suggest that the worker is an independent contractor include:

    the worker is in business on his or her own account and the profits are determined by the manner in which he or she carries out the work; the worker is not subject to PAYE/PRSI and is responsible for his or her own taxes; the worker is not under the direct control of the other party to the contract; and the worker has no fixed working hours. The distinction is also relevant for taxation. Different rates of PRSI apply to employees and contractors and there is different tax treatment for both. Employees are taxed by the...

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