Employment law /

Enhanced descriptions from Syndetics:

Employment Law is designed to give the trainee solicitor a thorough understanding of the principles of Irish employment law. It introduces common law principles, Irish case law and the European and Irish legislation, which impact on Irish employment law. Issues are explained in a clear way with reference to the applicable codes and case law, making it an excellent starting point on the subject.

Table of contents provided by Syndetics

• Preface (p. xvii)
• Authors (p. xix)
• Table of Cases (p. xxi)
• Table of Statutes (p. xxxiv)
• Table of Statutory Instruments (p. xli)
• 1 Contracts of Employment (p. 1)
• 1.1 Introduction (p. 1)
• Requirements of writing
• Terms or Employment (Information) Act, 1994
• 1.2 Employees in Irish Law-Contract of service/contract for services (p. 3)
• Introduction
• Written evidence of terms
• Tests to be applied
• A matter of degree
• Employment Appeals Tribunal approach
• The deemed employee
• Partnerships
• Shareholders/Directors-employee status
• 1.3 Pre-contractual matters (p. 10)
• Advertisement
• Interviews
• Conditions precedent
• 1.4 Implied terms (p. 14)
• Terms implied by statute
• Terms implied by custom or practice
• Collective agreements
• Terms implied by law
• 1.5 Express terms (p. 16)
• 1.6 Company directors (p. 48)
• Parties
• Date of commencement
• Job function
• Hours of work
• Place of work
• Exclusive service
• Probation
• Term of contract
• Salary/remuneration
• Company car
• Holidays
• Sick pay
• Pension
• Retirement age
• Grievance procedure
• Disciplinary procedure
• Restrictive covenants
• Termination of contract
• Search clause
• Patents, copyrights and inventions
• Share options
• Bullying and harassment
• E-mail, intranet and internet use
• Resignation of directorships or offices on termination of employment
• Proper law
• Miscellaneous
• 1.7 Contractual provision or work practice? (p. 48)
• Generally
• Written agreement
• Variation of contract
• 1.8 Collective agreements and contracts of employment (p. 56)
• Legality of collective agreements
• Tests applied
• Transfer of undertakings
• Applying contractual terms
• Registered employment agreements
• 2 Payment of Wages (p. 61)
• 2.1 Interpretation (p. 61)
• Contract of employment
• Employee
• Employer
• Wages
• Miscellaneous definitions
• 2.2 Modes of payment of wages (p. 64)
• 2.3 Repeal of Trucks Acts, 1831-1896 and related enactments (p. 64)
• 2.4 Statements of wages and deductions from wages (p. 64)
• 2.5 Regulation of certain deductions made and payments received by employers (p. 64)
• Deductions permitted by statute and contract
• Acts or omissions/supply of goods and services
• Excluded deductions
• Deficiency in or non-payment of wages
• 2.6 Complaints by employees in relation to contraventions of section 5 by their employers (p. 73)
• Generally
• Time limits
• 2.7 Appeal from decision of rights commissioner (p. 75)
• 2.8 Enforcement of decisions of rights commissioner and determinations of the EAT (p. 75)
• 2.9 Powers of authorised officers (p. 76)
• 2.10 Provisions in relation to offences (p. 76)
• 2.11 Voidance of certain provisions in agreements (p. 76)
• 2.12 Miscellaneous (p. 76)
• 3 Working Time and Statutory Leave Entitlements (p. 77)
• 3.1 Introduction (p. 77)
• 3.2 Working time (p. 77)
• Interpretation
• Application
• Minimum rest periods and other matters relating to working time (Part II)
• 3.3 Annual leave (p. 88)
• Introduction
• Entitlement to annual leave
• Calculating entitlement
• Effect of sickness
• Timing of leave
• Payment for annual leave
• Leave not taken and accruals
• Termination and holiday pay
• Public holidays
• Pay for a public holiday
• Record keeping
• Enforcement procedures
• 3.4 Maternity rights of employees (p. 97)
• Introduction
• Entitlement to maternity leave
• Sickness of the employee
• Hospitalisation of the child
• Payment during maternity leave
• Employment protection and the right to return to work
• Notification of intention to return to work
• Pregnancy-related dismissals
• Pregnancy-related illness
• Paid time off for ante-natal and post-natal care
• Breastfeeding breaks
• Death of mother
• Health and safety
• Resolution of disputes
• Summary of main maternity leave provisions as amended by the Maternity Protection Act 1994 (Extensions of Periods of Leave) Order 2006
• 3.5 Parental leave (p. 105)
• Introduction
• Entitlement to parental leave
• Manner in which parental leave may be taken
• Notice provisions
• Postponement, curtailment and variation of leave by the parties
• Postponement by the employer
• Condition of taking parental leave
• Force majeure leave
• Employment protection and the right to return to work
• Resolution of disputes
• Regulations
• 3.6 Adoptive leave (p. 112)
• Introduction
• Entitlement to adoptive leave
• Death of mother
• Time off to attend pre-adoption classes
• Postponement of leave on hospitalisation of child
• Absence owing to sickness whilst leave postponed
• Payment for adoptive leave
• Notice provisions
• Employment protection and the right to return to work
• Notification of intention to return to work
• Resolution of disputes
• Summary of main adoptive leave provisions as amended by the Adoptive Leave Act 1995 (Extensions of Periods of Leave) Order 2006
• 3.7 Carer's leave (p. 119)
• Introduction
• Entitlement to carer's leave
• Manner in which carer's leave may be taken
• Notice provisions
• Postponement, curtailment and variation of carer's leave by the parties
• Employment protection and the right to return to work
• Termination of carer's leave
• Resolution of disputes
• 4 Atypical Employees (p. 126)
• 4.1 Introduction (p. 126)
• 4.2 Agency workers (p. 126)
• The Employment Agency Act, 1971
• Statutory protection
• The implied contract of service
• Draft directive
• 4.3 Fixed-term employees (p. 131)
• The Employment Equality Acts, 1998-2004
• The Unfair Dismissal Acts, 1977-2001
• Unfair Dismissals (Amendment) Act, 1993
• The Protection of Employees (Fixed-Term Work) Act, 2003 Redundancy
• 4.4 Part-time employees (p. 142)
• Introduction
• The Protection of Employees (Part-Time Work) Act, 2001
• 4.5 Young persons (p. 149)
• 4.6 Migrant workers (p. 149)
• The Employment Permits Act, 2003
• The Employment Permits Bill, 2005
• 5 Health and Safety Law (p. 151)
• 5.1 Introduction (p. 151)
• 5.2 Statutory regulation (p. 151)
• 5.3 Common law (p. 153)
• Generally
• Volenti non fit injuria
• Doctrine of common employment
• Contributory negligence
• Evolution of modern duty of care owed by employer to employee
• 5.4 Safety, Health and Welfare at Work Act, 1989 (p. 154)
• 5.5 General duties imposed by the 2005 Act (p. 155)
• General duties of employers
• General duties of employers and self-employed to persons other than their employees
• General duties of employees
• General duties of designers, manufacturers, importers and suppliers of articles and substances for use at work
• General duties of persons who design and construct places of work
• 5.6 General overview of the 2005 Act (p. 161)
• 5.7 Safety statements (p. 163)
• 5.8 Consultation (p. 164)
• Health surveillance and medical fitness to work
• Joint safety and health agreements
• 5.9 Implementation of regulations under the 2005 Act (p. 165)
• 5.10 Safety, Health and Welfare at Work (General Application) Regulations, 1993 (p. 166)
• Part I Interpretation and applicability
• Part II General safety and health provisions
• Part III Workplace
• Part IV Use of work equipment
• Part V Personal protective equipment
• Part VI Manual handling of loads
• Part VII Display screen equipment
• Part VIII Electricity
• Part IX First aid
• Part X Notification of accidents and dangerous occurrences
• 5.11 Maternity Protection Act, 1994 (p. 178)
• 5.12 Safety, Health and Welfare at Work (Construction) Regulations, 1995 (p. 178)
• 5.13 Occupiers' Liability Act, 1995 (p. 179)
• 5.14 Safety, Health and Welfare at Work (Miscellaneous Welfare Provisions) Regulations, 1995 (p. 179)
• 5.15 Protection of Young Persons (Employment) Act, 1996 (p. 179)
• 5.16 Safety, Health and Welfare at Work (Children and Young Persons) Regulations, 1998 (p. 180)
• 5.17 Safety, Health and Welfare at Work (Night Work and Shift Work) Regulations, 2000 (p. 180)
• 5.18 European Communities (Protection of Workers) (Exposure to Asbestos) (Amendment) Regulations, 2000 (p. 181)
• 5.19 Safety, Health and Welfare at Work (Pregnant Employees etc) Regulations, 2000 (p. 181)
• 5.20 Enforcement under the 1989 regime (p. 182)
• Health and Safety Authority
• Prosecution of offences
• Time limits
• 5.21 Future of health and safety legislation and management standards (p. 187)
• Generally
• Duty of care
• Increased expectations
• Corporate responsibility
• 6 Equality and Discrimination in the Workplace (p. 190)
• 6.1 Evolution of Irish employment equality law (p. 190)
• Sources of Irish employment equality law
• The Equal Pay Directive
• The Equal Treatment Directive
• General Framework Directive
• The Constitution
• The EC Treaty
• Equal pay
• Employment Equality Act, 1977
• 6.2 Employment Equality Acts, 1998 and 2004 (p. 199)
• Constitutionally repugnant provisions
• Provisions of the 1998 and 2004 Acts
• Gender
• Marital status
• Family status
• Sexual orientation
• Religious belief
• Age
• Disability
• Race
• Membership of the traveller community
• 6.3 Employer policies (p. 210)
• 6.4 Forms of discrimination (p. 210)
• 6.5 Indirect discrimination (p. 211)
• Test for indirect discrimination
• Nathan v Bailey Gibson
• Burden of proof
• Job sharing
• Proportionality
• 6.6 Equal pay (p. 220)
• European Commission code of practice
• The 1998 and 2004 Acts
• Associated employer
• Like work
• Grounds other than gender
• Red circling
• 6.7 Sexual harassment (p. 225)
• Definition
• Employment Equality Act, 1977
• Labour Court approach
• Legal action
• Vicarious liability
• Sexual harassment in the 1998 and 2004 Acts
• 6.8 Harassment other than sexual harassment (p. 232)
• 6.9 Vicarious liability under the 1998 Act (p. 232)
• 6.10 Positive action (p. 234)
• Action permitted by 1998 and 2004 Acts
• Action permitted by Equal Treatment Directive
• 6.11 Exemptions (p. 236)
• Introduction
• Sexual orientation
• Exceptions related to the family, age or disability
• Special provisions for employees with disabilities
• Special exemptions for state employees
• Religious ethos
• 6.12 Institutions (p. 238)
• Equality authority
• Information
• Enforcement and remedies
• Burden of proof
• 6.13 Impact of the 1998 and 2004 Acts (p. 241)
• Introduction
• Recruitment and promotion
• Terms, conditions and benefits
• Harassment policies
• Discrimination policies
• Positive action
• 7 Restraining Dismissals: Injunctions and the Contract of Employment (p. 243)
• 7.1 Introduction (p. 243)
• 7.2 Classification of injunctions (p. 244)
• 7.3 Principles governing the granting of an injunction (p. 244)
• Serious question to be tried
• Damages an adequate remedy
• Balance of convenience
• 7.4 Injunctions in an employment context (p. 247)
• 7.5 Restraint of trade (p. 247)
• 7.6 Mutual trust and confidence (p. 248)
• 7.7 Development of the injunction restraining a dismissal (p. 248)
• Irish developments: Fennelly
• Developments post-Fennelly
• Current status: 2006-20 years post-Fennelly
• 7.8 When will the courts grant an injunction? (p. 252)
• Where the dismissal is in breach of contract
• Where the dismissal is ultra vires
• Where the dismissal is in breach of fair procedures
• Absence of grounds justifying dismissal
• Where the dismissal is in breach of a constitutional right
• Non-dismissal injunctions
• 7.9 The future? (p. 254)
• 7.10 Wrongful dismissal at common law and statutory unfair dismissal distinguished (p. 255)
• 7.11 Procedure to obtain an injunction (p. 256)
• 7.12 Implications of unsuccessful application (p. 257)
• 8 Unfair Dismissals (p. 258)
• 8.1 Introduction (p. 258)
• 8.2 Who is covered by unfair dismissal legislation? (p. 258)
• 8.3 Who is excluded? (p. 259)
• 8.4 Definitions (p. 259)
• Employee
• Employee/independent contractor
• Agency-supplied staff
• 8.5 Fixed-term and specified-purpose contracts (p. 261)
• 8.6 Dismissal (p. 263)
• Generally
• Indefinite suspension
• Appeals
• Termination
• Non-renewal of fixed-term contract
• Constructive dismissal
• 8.7 Resignations (p. 268)
• 8.8 Date of dismissal (p. 269)
• 8.9 Remuneration (p. 269)
• Calculation of remuneration
• Assessment of loss
• 8.10 Continuity of service (p. 271)
• 8.11 Employees working outside Ireland (p. 272)
• 8.12 Diplomatic immunity (p. 273)
• 8.13 Probation (p. 273)
• 8.14 Apprentices (p. 273)
• 8.15 Unfair dismissals (p. 275)
• Categories
• Engaging in industrial action
• 8.16 Unfair dismissal and redundancy (p. 277)
• 8.17 Strikes and lock-outs (p. 277)
• 8.18 Procedural fairness (p. 278)
• General
• Case law
• Employee subject to criminal charges
• Importance of particular circumstances
• 8.19 Grievance procedures (p. 281)
• 8.20 Warnings (p. 282)
• Generally
• Performance-related problems
• 8.21 Targets (p. 284)
• 8.22 Suspension (p. 284)
• 8.23 Disciplinary hearing (p. 285)
• General requirements
• Criminal investigations
• Dishonesty
• Effect of delay
• 8.24 Representation-legal representation (p. 287)
• 8.25 Standard of proof (p. 287)
• Generally
• Irish case law
• UK case law
• 8.26 Absence/sickness dismissals (p. 290)
• Generally
• Illness records giving rise to dismissal
• Onus of proof
• Management decision
• Up-to-date medical opinion
• Need to dismiss
• Employees injured or allegedly injured at work
• Income continuance/permanent health insurance
• Light work
• Disclosure of outcome of medical examination
• Abuse of sick leave
• 8.27 Competition/conflict of interest (p. 297)
• Generally
• Family connections
• Behaviour inconsistent with employer's business
• 8.28 Criminal convictions (p. 299)
• 8.29 Lack of competence and poor performance (p. 299)
• Test of incompetence
• Monitoring of employee
• Intransigent employees
• Temporary appointment
• 8.30 Conduct (p. 301)
• 8.31 Penalty (p. 302)
• 8.32 Contracting out and settlement of cases (p. 303)
• Contracting out
• Duplication of claims
• Discriminatory dismissals
• Remedies/redress
• 8.33 Taxation (p. 307)
• 8.34 Claims under unfair dismissal legislation (p. 308)
• Time limits
• Documentation
• 8.35 Employment Appeals Tribunal (p. 309)
• Guidelines for persons representing parties before the EAT
• Statutory forms to be used in application to EAT
• 9 Redundancy (p. 312)
• 9.1 Introduction (p. 312)
• 9.2 Definition of redundancy (p. 312)
• 9.3 The impersonality and change requirement (p. 314)
• 9.4 Requisite period of employment (p. 314)
• 9.5 Dismissal by an employer (p. 315)
• 9.6 Resignation by employee (p. 316)
• 9.7 Lay-off and short-time (p. 316)
• 9.8 Disentitlement to redundancy (p. 317)
• 9.9 Notice of redundancy (p. 318)
• 9.10 Redundancy payment (p. 318)
• 9.11 Continuous employment (p. 319)
• 9.12 Reckonable service (p. 320)
• 9.13 Normal weekly remuneration (p. 320)
• 9.14 Payments in excess of statutory requirements (p. 320)
• 9.15 Resolution of disputes (p. 321)
• 9.16 Collective redundancies (p. 321)
• Introduction
• Definitions
• Consultation and notification
• Commencement of collective redundancies
• Resolution of disputes
• 10 Trade Unions, Trade Disputes and Industrial Relations (p. 324)
• 10.1 Constitutional position of trade union membership (p. 324)
• Introduction
• Union recognition
• Implied recognition
• Relationships between trade unions
• Closed shop provisions
• The right to strike
• 10.2 Trade disputes (p. 328)
• Introduction
• Trade union disputes and industrial action
• Preconditions to lawful industrial action
• The golden formula
• Two case studies
• 10.3 Industrial relations (p. 350)
• Institutions
• Scope
• 10.4 The Labour Court (p. 351)
• Generally
• Special investigation procedures
• Conciliation
• Arbitration
• Fair employment rules
• Standard wages for areas
• Appeal
• 10.5 Rights commissioners (p. 353)
• 10.6 Joint Labour Committees (p. 354)
• 10.7 Joint Industrial Councils (p. 354)
• 10.8 Registered employment agreements (p. 354)
• Generally
• Conditions of registration
• 10.9 Industrial Relations Act, 1990 (p. 355)
• 10.10 Codes of practice (p. 356)
• 11 Transfer of Undertakings (p. 357)
• 11.1 The transfer of undertakings Directives (p. 357)
• Transfer of Undertakings Directive 77/187/EEC
• Directive 2001/23/EC of 12 March 2001
• The European Communities (Protection of Employees on Transfer of undertakings) Regulations, 2003, SI 2003/131
• Scope of Directive and Regulations
• Who is covered by the Directive and Regulations?
• 11.2 Interpreting the Directive and Regulations (p. 362)
• The Preamble
• Territorial scope
• The purposive approach
• Irish position
• 11.3 Undertakings (p. 364)
• 11.4 Economic entity/undertaking (p. 365)
• Introduction
• Stable economic entity
• 11.5 Transfer (p. 366)
• Introduction
• Cessation and later resumption
• Change of ownership
• Contractual nexus between transferor and transferee
• Transfer of activity
• 11.6 Franchises or dealerships (p. 372)
• 11.7 Transfer of employees (p. 373)
• Underlying philosophy
• Transfer of part of an undertaking
• Part of an undertaking or a mere activity?
• Stable economic entity
• Spijkers criteria
• 11.8 Service providers (p. 376)
• Generally
• Economic unit
• Restricting transfers
• Stable economic entity-Rygaard
• Asset transfer
• Legal transfer or merger and service provider
• Date of transfer and existence of rights and obligations
• Time of transfer or date of transfer?
• Can employees agree changes prior to or at time of transfer?
• No obligation on employees to transfer
• 11.9 Trade unions (p. 395)
• Legislative provisions
• Union recognition
• Implied recognition
• Picketing by employees of a transferor
• Transfer-related dismissals and organisational changes arising from transfer
• Transfer-related dismissals
• Slimming down and liability for severance costs
• 11.10 The ETO defence (p. 398)
• Generally
• Changes in the workforce
• Reason for dismissal-transfer or ETO?
• Motivation for change
• ETO and redundancy
• Scope of the ETO defence
• 11.11 Information and consultation (p. 403)
• Legislative requirements
• Timing
• Notices
• Injunctive relief
• Transfer of restrictive covenants
• Extent of restriction
• 11.12 Automatic transfer of liabilities, rights and obligations (p. 408)
• Generally
• Benefits transferred
• 11.13 Pensions (p. 409)
• General exclusion for pensions
• 11.14 Insolvency (p. 409)
• 11.15 Due diligence (p. 410)
• Introduction
• Preliminary personnel audit
• The due diligence process
• Trade unions
• Indemnities and warranties
• Social plan
• Insurance
• Enforcement of and remedies under the regulations
• 12 Redress, Remedies and Forums (p. 414)
• 12.1 Introduction (p. 414)
• 12.2 Rights Commissioner (p. 414)
• 12.3 Employment Appeals Tribunal (p. 415)
• 12.4 The Labour Court (p. 415)
• 12.5 The Labour Relations Commission (p. 415)
• 12.6 Office of Director of Equality Investigation (Equality Tribunal) (p. 415)
• 12.7 The Civil Courts (p. 416)
• 12.8 The Health & Safety Authority (p. 416)
• Index (p. 423)

Author notes provided by Syndetics