The Statutory Penalties for Breaches of Employment Law in Ireland

Are you aware of the range of penalties that are set down in legislation in Ireland for breaches of employment law?

There is a large number of statutes/acts dealing with all aspects of employment law in Ireland. These acts cover overnighting from unfair dismissal to working time to payment of wages to health and safety to annual leave and rest breaks, etc.

In addition to these penalties and employee can always go to the Civil Courts for common law claims such as breach of contract, personal injury, negligence, health and safety breaches, breach of constitutional rights, etc. That is another day’s work.

This piece is going to look at the penalties and redress for employees as set out in statute, that is, the various acts on the statute book.

Regardless of whether you are an employer or employee, you should find it useful.

Unfair Dismissal/Constructive Dismissal

The redress is set out in section 7, Unfair Dismissals Act, 1977, and in summary comprises

  1. Reinstatement or
  2. Reengagement or
  3. Compensation of up to 104 weeks’ remuneration in respect of the financial loss due to the dismissal.

If there is no financial loss an employee can be awarded 4 weeks’ remuneration.

Working Time/Rest Breaks

The penalties are set out in section 27, Organisation of Working Time Act, 1997:

  1. Require the employer to comply with the relevant provision of the act
  2. Compensation of up to 2 years’ remuneration.

Written Terms of Employment

Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be punished as set out in section 7 of the Terms of Employment (Information) Act, 1994.

The WRC adjudicator can order the employer to give the statement to the employee and can award up to 4 weeks’ remuneration by way of compensation.

Protected Disclosures/Whistleblowing

The Protected Disclosures Act, 2014 provides severe penalties in section 11 for dismissal of an employee for making a protected disclosure:

  • 260 weeks (5 years) remuneration

The employee can also bring a tort action for having suffered detriment as a result of making a protected disclosure, as set out in section 13, Protected Disclosures Act, 2014, and can seek an order from the Circuit Court as set out in section 11 of the act preventing dismissal prior to the determination of a claim for unfair dismissal.

Payment of Wages

Section 6, Payment of Wages act, 1991 sets out the penalties for breaches of the act. These include

  • Compensation of the net amount of the wages which would have been paid the previous week prior to the deduction/non payment or
  • Twice the net amount of wages that would have been paid to the employee in the week immediately preceding the deduction or payment

Minimum Notice

Compensation can be awarded pursuant to Minimum Notice and Terms of Employment Act, 1973: “may award to the employee compensation for any loss sustained by him by reason of the default of the employer.”

Agency Workers

Penalties for breach of Protection of Employees (Temporary Agency Work) Act 2012 are set out in schedule 2 of the Act. It states that the WRC can order rectification of whatever breach of the act is proved, including reengagement or reinstatement, and/or order compensation of up to 2 years’ remuneration be paid to the employee.

Adoptive Leave, Carer’s Leave, Parental Leave

Breach of the adoptive leave provisions of the Adoptive Leave Act, 1995 can see compensation of up to 20 weeks’ remuneration awarded to the employee, or the WRC making whatever directive order it feels is expedient in the circumstances.

Carer’s leave: a WRC adjudicator can award a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify, and/or up to 26 weeks’ compensation.(Carer’s Leave Act, 2001).

Parental Leave and Force Majeure Leave:  an adjudicator can award (a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified, and/or compensation of up to 20 weeks’ remuneration.(Parental Leave Act, 1998).

Maternity leave: breaches of the employees entitlement can lead to an award of compensation of up to 20 weeks’ remuneration and or grant of the leave to which the employee is entitled.(Maternity Protection act, 1994).

Transfer of Undertakings

Complaints about breaches of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can lead to compensation being awarded depending on which regulation has been breached.

The compensation can range from a maximum of 4 weeks’ remuneration to 2 years’ remuneration.

Part Time Workers

The Protection of Employees (Part-Time Work) Act, 2001 is the relevant act for part time workers.

It provides that the WRC adjudicator can require the employer to comply with the relevant provision and/or award 2 years’ remuneration to the employee.

Fixed Term Workers

The Protection of Employees (Fixed-Term Work) Act 2003 is the relevant act for fixed term workers. Section 14 of the revised act provides the WRC adjudicator can:

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Redundancy

The Redundancy Payments Act, 1967, section 7 sets out the employee’s right to a redundancy payment. Section 39 allows you to appeal the amount you have been awarded.

The Protection of Employment Act, 1977 also obliges the employer to inform and consult with employees in a collective redundancy situation. Section 11 of the Act sets out the penalties for the employer’s failure to consult and notify: a fine of up to €5,000 on summary conviction in respect of a breach of section 9 or section 10.

Discrimination and Equality Based Claims

Breaches of the Employment Equality Act, 1998 can see redress being ordered pursuant to section 82 of the Employment Equality Act, 1998:

Various orders including for re-engagement, re-instatement or compensation of up to 2 years’ remuneration or €40,000, whichever is the greater.

€13,000 can be awarded in contravention of the law in relation to a discriminatory claim in relation to access to employment.

Equal Status Acts Breaches

Equal status breaches can be penalised in accordance with the Equal Status Act, 2000. This protects you in relation to discrimination in respect of the supply of goods or services.

The maximum amount that can be awarded is the amount of the District Court limit in civil cases in contract (€15,000).

Minimum Wages

The National Minimum Wage Act, 2000 protects employees in relation to minimum wage rates. Complaints can be dealt with under section 26 of the act. The adjudication officer can order that the shortfall be rectified and paid to the employee, and the employee can also be awarded reasonable costs in respect of bringing the claim.

The employer can also be prosecuted in the District Court for breaches of this minimum wage act.

Health and Safety

Breaches of the Safety Health and Welfare Act 2005 can see an adjudication officer awarding compensation of such amount as he feels equitable in the circumstances for breach of section 27 of the act, which protects employees from penalisation or dismissal for making a complaint in respect of health and safety in the workplace.

Conclusion

The list above is not definitive, but certainly covers the most common types of employment law claim that will be brought to the WRC (Workplace Relations Commission), or Labour Court. A WRC adjudicator has a wide range of discretion for breaches of any particular act, so the various acts referred to above set out the maximum awards possible.

Minimum Notice on Termination of Employment in Ireland-the Essentials

minimum notice ireland

A question I am asked regularly is “how much notice am I entitled to?”, and “how much notice to I have to give?”

There is two aspects to this: statute and contract.

Let me explain.

The primary piece of legislation in Ireland dealing with notice periods is the Minimum Notice and Terms of Employment Act, 1973.

The sections (9 and 10) which deal with giving a written statement of terms of employment have been superseded by the Terms of Employment (Information) Act, 1994.

Section 3 of the act sets out who the act does not apply to, including employees who work less than 18 hours per week and relations of the employer.

Minimum Statutory Periods of Notice

Section 4 of the Act sets out the minimum periods of notice of termination of employment as follows:

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 5 sets out the employee’s rights during the notice period, the main one of which is the right to be paid in accordance with his contract of employment, even if the employer gives him no hours or has no work for him.

Section 6 sets out the employer’s right to notice from the employee:

6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

Section 7 provides the right for both employer and employee to waive the notice period, with the employee accepting pay in lieu of the notice period.

Section 8 provides that there is no obligation to give notice in situations of misconduct, but I would caution employers against relying on this section too often, or at all.

Section 11 provides for complaints by employees to be made for breaches of the act. These complaints are now dealt with by the Workplace Relations Commission and the Labour Court on appeal.

The WRC adjudicator can order the employer to pay compensation for the loss sustained by the breach of the act.

The first schedule of the act sets out how the employee’s continuous service is to be computed.

Contractual Notice Period

Remember that the above notice periods are minimum statutory notice periods; if the contract provides for a greater period of notice then this must be complied with or a breach of contract case will be open to the employee.

The employer, too, can theoretically sue the employee for breach of contract if he/she does not give the contractual period of notice.

It is not a course of action that is likely to be frequently taken.

3 Complaints About Minimum Notice to the WRC

 

minimum notice

The relevant act which covers these 3 notice related complaints is the Minimum Notice and Terms of Employment Act, 1973.

The 3 complaints which can be brought are:

  1. Minimum Notice

Did you receive your statutory minimum notice on termination of your employment, if not, did you get paid in lieu?

If not, you might be interested in the following:-

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 (the “1973 Act”) outlines what Notice employers must give employees dependant on length of Employee’s Service

(a)       13 weeks to 2 years = 1 week

(b)       2 years to 5 years =     2 weeks

(c)       5 years to 10 years =   4 weeks

(d)       10 years to 15 years = 6 weeks

(e)       More than 15 years = 8 weeks.

The employee can accept payment in lieu of the notice and this is covered under Section 7 of the 1973 Act.

  1. Your rights during the period of notice

Did you know that under Section 5 of the 1973 Act you are entitled to be paid by your employer under the terms of your contract of employment and shall have rights to sick pay and holidays with pay as per your contract of employment?

 

  1. Employers

Did you receive your minimum notice of termination of the contract of employment from your employee?

If not, Section 6 of the 1973 Act states that employees for 13 weeks or longer must provide their employer with one weeks’ notice of termination.

If a greater amount of notice is specified in the contract of employment, then this notice must be given.

If you do not require the employee to work any part of their notice you are obliged to pay them for that period.

However, there is no compensation for the employer for the employee’s failure to provide the required notice.