Sunday, November 14, 2010

Contract of employment

Information

Anyone who works for an employer in Ireland for a regular wage or salary automatically has a contract of employment. While the complete contract does not have to be in writing, an employee must be given a written statement of terms of employment within 2 months of starting work - see 'Rules' below.
The majority of employees work under open-ended contracts of employment. In other words, the contract continues until such time as the employer or employee ends it. Many other employees however, work under fixed-term or specified-purpose contracts which are contracts which end on a specified date or when a specific task is completed.
The contract of employment will include some or all of the following elements (regardless of whether the employer and employee have specified them or not):
  • The terms that the courts say are in every contract of employment. Examples include the duty of every employer to provide a safe workplace and the duty of every employee to carry out the job to the best of his/her ability. This part of the contract is occasionally referred to as "common law".
  • Terms that must be part of the contract as a result of laws passed by the Dail. Examples include the right to take maternity leave. Such terms are part of the contract even if the employer and employee do not specifically include them and replace any agreement between the employer and employee not to apply the particular law. So, the statutory right to take maternity leave overrides any agreement between the employer and employee that the employee will not take maternity leave.
  • Terms that the Irish Constitution states must be in every contract, for example, the right of an employee to join a trade union.
  • Collective agreements
  • Joint Labour Committee Regulations
  • EU laws
In addition, custom and practice in a particular workplace may form part of a contract. An example would be a particular level of overtime pay for employees.

Rules

The Terms of Employment (Information) Acts 1994 and 2001 provide that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.
The statement of terms must include the following information:
  • The full name of employer and employee
  • The address of the employer
  • The place of work
  • The title of job or nature of work
  • The date the employment started
  • If the contract is temporary, the expected duration of the contract
  • If the contract of employment is for a fixed term, the details
  • Details of rest periods and breaks as required by law
  • *The rate of pay or method of calculation of pay
  • The pay reference period for the purposes of the National Minimum Wage Act 2000
  • *Pay intervals
  • *Hours of work
  • *That the employee has the right to ask the employer for a written statement of his/her average hourly rate of pay as provided for in the National Minimum Wage Act 2000
  • *Details of paid leave
  • *Sick pay and pension (if any)
  • *Period of notice to be given by employer or employee
  • *Details of any collective agreements that may affect the employee’s terms of employment
* In the case of these items instead of giving each employee the details in writing, the employer may refer an employee to other documents, for example, a pension scheme booklet or a collective agreement, provided that the employee has easy access to such documents.
The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee's entitlements under the National Minimum Wage Act 2000. (Under that Act the employer may calculate the employee's minimum wage entitlement over a reference period that is no less than one week and no greater than one month).
There is a sample written statement of terms of employment on the website of the National Employment Rights Authority.

Disciplinary and grievance procedures

The Labour Relations Commission has published the Code of Practice: Grievance and Disciplinary Procedures which states that employers should have written grievance and disciplinary procedures and they should give employees copies of these at the start of their employment. Under the Unfair Dismissals Acts 1977-2007 employers are required to give the employee in written notice of the procedures to be followed before an employee is dismissed. This must be done within 28 days of entering the contract of employment.

Specific provisions in contracts of employment

In recent times, some employers are adding in specific provisions in contracts of employment that limit the ability of employees to work in a certain sector, with certain suppliers, clients, for a period following termination of employment. (For example, it may specifically state that the employee cannot work in a certain sector, with or for suppliers or clients of the former employer, etc.). There is nothing in employment law in Ireland that strictly forbids this, but there is no provision in employment law that allows this either.
Essentially, this is an issue of contract law - that is, the contract of employment signed and agreed between the employer and employee. If you have any concerns about this issue, you are strongly advised to seek legal advice from a competent legal professional in advance of signing this contract. However, even if the contract is signed, you are always free to seek such legal advice. Solicitors' fees in Ireland can vary widely so shop around and obtain some quotes for legal advice before you proceed.

Probationary period

The contract can include a probationary period and can allow for this period to be extended. The Unfair Dismissals Acts 1997-2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:
  • the contract of employment is in writing
  • the duration of probation or training is one year or less and is specified in the contract.
The above exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and carer's leave legislation.

Changes to your contract of employment

Changes to your contract of employment in Ireland can occur due to a change in the law, but otherwise, changes must be agreed between your employer and yourself. The requirement for both the employer's and the employee's consent to changes in the terms of the contract is part of contract law.

How to apply

If your employer fails to give you written details of the terms of your contract, you can bring a complaint to a Rights Commissioner using the Rights Commissioner complaint form (pdf). You must make the complaint while you are in employment or within 6 months of leaving your employment. For further information about your employment rights contact the National Employment Rights Authority.

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