Every year the Employment Appeals Tribunal produces a report of its activity in preceding years.
The Tribunal has just published its report for 2012.
The top 6 categories of case referred to the Employment Appeals Tribunal in 2012 were:
1. Unfair dismissal 31%
2. Redundancy 22%
3. Minimum Notice & Terms of Employment 17%
4. Payment of Wages Act, 1991 14%
5. Organisation of Working Time Act, 1997 7%
6. Terms of Employment (Information) Acts 5%.
Unfair Dismissals Acts 1977 to 2007
The average amount of compensation awarded by the Tribunal was €18,519.84. In addition to compensation the Tribunal ordered re-instatement in 4 cases and re-engagement in 10 cases.
In addition to the cases referred above there were 11 cases referred under the Maternity Protection Acts 1994 and 2004; 2 under the Parental Leave Acts 1998 and 2006; 72 cases under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE); and 28 cases under European Communities (Protection of Employment) Regulations 2000.
Representation at Cases
There is no requirement for representation in order to appear before the Tribunal.
In 2012 1917 employees had representation in the following way:
397 cases representation was by Trade Unions; 1,196 employees were represented by legal professionals; and 342 were represented by “other persons”.
In the same period employers had representation in 1,116 cases with 659 by legal representatives, 390 by other persons, and 67 by employers’ associations.
The highest level of representation was in unfair dismissal cases.
Appeals to Higher Courts
Some determinations can be appealed to the High Court on a point of law. In 2012 six such cases were appealed.
In unfair dismissal cases, determinations of the Tribunal can be appealed to the Circuit Court within 6 weeks of the date of determination. In 2012 approximately 128 cases were appealed to the Circuit Court.
The growth in referral of cases to the Tribunal has led to the average waiting period increasing significantly over the last few years.
The average waiting period in Dublin in 2012 was 77 weeks and 82 weeks outside Dublin.
There are major changes proposed by the Minister for Jobs, Enterprise and Innovation to set up a 2 tier Workplace Relations structure. There will be a new single body of first instance-the Workplace Relations Commission-and a separate appeals body, which will be effectively an expanded Labour Court.
Being an employer in Ireland is a difficult challenge because here is a huge body of employment law which places onerous obligations on the employer.
There are key areas of possible friction for you as an employer and which can lead to costly and expensive mistakes in your dealings with your employees.
Lets take a look at some of the most common ones.
Key areas of concern for an Irish employer
1) The Contract of employment
This is a critical area to get right from the outset and to prevent problems arising in the future. Watch out for implied terms as well as the express terms you agree with your employee. (See contract of employment for more information)
This area covers rest periods, sickness of the employee as well as holiday entitlements and maternity periods and is an area of friction between employer and employee. The Organisation of Working Time Act, 1997 and various EU directives have a lot to say in this area. See also how to calculate holiday entitlements.
4) Discrimination and equality in the place of work
This is another huge area of law with rights and entitlements arising from the Constitution, EU directives and our own Irish legislation such as Employment Equality Acts.
Health and safety law places some very serious obligations on the employer and there are common law obligations as well as statutory obligations. Breaches of health and safety law can lead to criminal convictions for you as an employer.
Need I say more? This area also covers constructive dismissals and has proven to be an area of considerable cost and expense to employers. A necessary line of defence in relation to claims for unfair dismissal is good grievance and disciplinary procedures which follow best practice.
The above are broad areas of employment law which commonly lead to costly mistakes and expense for you as an employer if not handled correctly. You might be interested in further employment law articles which spell out some common misconceptions and mistakes that cost employers in Ireland.
10) NERA Ireland
Getting ready for a NERA inspection can be time consuming and expensive if you do not follow some essential steps to ensure you are compliant as an employer. Learn more about the work of NERA and take a look at the handy employers’ check list.
11) Part time Employees’ Working Conditions
Not understanding the protections that part time employees enjoy is also something that many employers overlook or take for granted. Learn about part time employees’ rights here.
12) Fixed Term Contracts
Fixed term contracts and the danger of a contract of indefinite duration (CID) arising against the employer’s wishes is quite common also. Learn more about fixed term contracts here.
If you are an employer you are in danger of leaving yourself wide open to expensive claims by your employees if you fail to follow some basic but essential steps in your employment relationship with your employees.
In addition to settling successful claims brought by employees you also run the risk of fines and other sanctions from the National Employment Rights Authority (NERA) which has a dedicated unit, the Prosecution Services Unit, which can refer cases to the Chief State Solicitors Office for prosecution.
There is a wide body of employment legislation in force in Ireland which can be confusing for many employers.
In addition some industries have their own industry specific agreements called registered employment agreements (REA) and minimum wage rates. It is worth noting that these registered employment agreements are binding on all parties once registered with the Labour Court.
1. Written statement of certain terms and conditions of employment
This statement must be given to the employee within two months of commencing employment.
The relevant act is the Terms of Employment (Information) Act 1994 which sets out the basic information that an employee is entitled to be given in writing about their contract of employment. You need to be careful that you provide the additional information set out in the revised act, which is
( fa ) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ]
F6 [ (g) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,
( ga ) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section,
The Payment of Wages Act, 1991 obliges the employer to give a written statement of wages and deductions at the time of payment. Learn more about payment of wages here.
3. The minimum wage
There are exceptions to the minimum wage in Ireland of €8.65 per hour but most adults will be entitled to it; in addition certain industries have their own higher minimum wage. Learn more about minimum wage rates.
4. Maximum hours worked
Employers must keep records of hours worked by employees to ensure compliance with the maximum working week average of 48 hours which may be calculated over a 4, 6 or 12 month period depending on the industry. Learn more about working time and rest breaks here.
5. Working time and breaks
The breaks to which employees are entitled are set out in the Organization of Working Time Act, 1997. Currently break entitlements are 15 minutes per four and a half hours work and a 30 minute break for six hours worked.
6. Holiday entitlements
Holiday entitlements are also covered in the Organization of Working Time Act, 1997. In general full time workers are entitled to four paid weeks holidays per year with part timers being entitled to similar holidays on a pro rata basis depending on hours worked which equates to one third of a week per month worked. (Learn more about how to calculate holiday entitlements.)
7. Minimum notice of termination of employment
The minimum notice periods are set out in the Minimum Notice and Terms of Employment Acts 1973 to 2001 and depend on the length of service with the minimum regardless of service being 1 week.
Employers can save themselves the considerable costs in money and time involved in defending or otherwise dealing with claims by their employees by some prudent management and housekeeping.
The list above is not exhaustive, but if you took care of those 7 areas you would be in good shape as an employer.
Doing business nowadays can be a worrying enough activity without inviting needless trouble on yourself for the want of a straightforward contract of employment and/or letter of offer and/or statement of your employees’ terms and conditions.
At a minimum you should carry out an audit of your
Contracts of employment
Disciplinary and grievance procedures
All workplace policy documents.
If you don’t have any of the above, you are asking for trouble, especially when there is a dispute or a NERA inspection.