Injunctions and the Contract of Employment in Ireland-What You Need to Know


employment injunction

What is an injunction? It is a Court order restraining a person from carrying out a specific act or requiring him to perform such an act.


In employment law the use of an injunction where there is a threatened or actual dismissal has increased in the last few decades. And its use is not confined to only dismissal situations.

They have also been sought in relation to sick pay, pickets, advertising positions, ending suspensions etc.

However the increasing use of the employment related injunction must be viewed against the backdrop that Courts are very reluctant to order specific performance of a contract of personal service.

Prohibitory or Mandatory?

The most common form of injunction sought is a prohibitory injunction seeking to restrain the employer from doing a specific act.

An interim or interlocutory injunction is generally sought on an ex parte basis to preserve the status quo in a dispute until the action can be tried in Court (interlocutory) or until a further order can be made by the Court prior to the hearing (interim). It is generally applied for where the matter is particularly urgent.

Principles governing the granting of an injunction

The principles were summarised in Campus Oil v Minister for Industry and Energy [1983] and are

  1. That there is a fair or bona fide issue to be tried-in other words the claim must not be frivolous or vexatious;
  2. If there is a bona fide issue to be tried the Court must then consider whether damages would be an adequate remedy or not. If so the Plaintiff will be required to give an undertaking as to damages, that is, in the event of the injunction being refused the Plaintiff will pay damages to the person injuncted;
  3. That the balance of convenience favours the granting of the injunction rather than its refusal.

As stated above, Courts will refuse to order the specific performance of a contract of employment. Because it would be impossible to supervise and because damages should be an adequate remedy. However there are exceptions but there must be mutual trust and confidence between employer and employee.

When will Courts grant an injunction in an employment law case?

Over the last 30-40 years the Courts have affirmed the traditional position that damages are an adequate remedy in cases of purported wrongful dismissal. However case law has shown that injunctions may potentially be granted in the following 6 situations:

1. where the dismissal is in breach of contract eg the absence of the contractual notice period or the absence of a contractual disciplinary process;

2. where the dismissal is ultra vires;

3. where the dismissal is in breach of fair procedures;

4. where the purported grounds for dismissal are absent eg alleged redundancy;

5. where the dismissal is in breach of a constitutional right;

6. non dismissal injunctions eg preventing the advertising of a position pending the trial of the action.

Wrongful dismissal at common law and statutory unfair dismissal

(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.(Section 15 Unfair Dismissals Act, 1977)

The employee must therefore choose between suing for damages at common law or claiming relief under unfair dismissals legislation. So the employee when seeking an injunction or declaration will not include a claim for damages for breach of contract in order to keep open the door to the unfair dismissals legislation.

Generally, injunctions are sought be employees on an ex parte basis, that is without notice to the other side. However where the application is unsuccessful the consequences for the employee can be serious on two significant grounds:

1. Court costs and

2. the fact that the employee’s application would have been predicated on the subsistence of the employment relationship-clearly this makes it difficult to then claim unfair dismissal at the Employment Appeals Tribunal.

If you are considering seeking a Court injunction in an employment matter, make sure to obtain professional legal advice first.

The 6 Principal Causes of Action in Employment Related Claims


There is a huge number of ways for an employee to bring a claim against the employer. But the Employment Appeals Tribunal report for 2012 tells us the top 6 categories of claim.

This piece will look at those 6 categories and give you some pointers to reduce the chances of a successful claim against you.

Before we look at the top sources of pain for employers do note that the average payout for a successful claim in 2012 was €18,519.84 so taking steps to reduce the chances of successful claims is time and money well spent.

The 6 causes of action of cases brought to the Employment Appeals Tribunal in 2012 were:

1.      Unfair dismissal.

This would also include constructive dismissal-where the employee quits because of the “intolerable conduct/behaviour” of the employer.

Constructive dismissal sees the burden of proof shifting to the employee and it can be a difficult (but not impossible) burden to discharge.

Unfair dismissal on the other hand sees the burden of proof falling on the employer to show that the dismissal was fair and reasonable and, most importantly, fair procedures were followed. There are also 8 grounds on which a dismissal is deemed to be automatically unfair.

Read more about unfair dismissal here.


2.      Redundancy

“Sham redundancy” or unfair selection for redundancy would be the principal causes of claims under the redundancy heading.

You can learn more about redundancy in Ireland here.


3.      Minimum Notice and Terms of Employment

The notice period for termination of the employment contract should be in the contract itself. If it is not then any notice period must be “reasonable” and in accordance with the minimum notice periods set out in the Minimum Notice and Terms of Employment Act, 1973.


4.      Payment of Wages Act, 1991

Payment of Wages claims tend to fall into a number of categories including:

  • Non payment of wages
  • Unlawful deductions from wages
  • Non payment of minimum wage rates.

You can learn more about the payment of wages legislation here.


5.      Organisation of Working Time Act, 1997

Claims under this heading would tend to be for non payment of holiday entitlements, failure to allow proper rest breaks, failure to give the employee their public holiday entitlements, and failure to keep proper records.

You can learn more about organisation of working time act claims here.


6.      Terms of Employment (Information) Acts

This claim, and it is a common one, is because of the failure of the employer to give the employee a written statement of certain terms and conditions of employment within 2 months of commencing employment.

When the relationship breaks down and there is a claim made against employer, this is also a common one to throw into the mix.

The employer can have a month’s salary awarded against him/her for failure to give a statement to an employee. There is really no excuse for this and it is such an easy to avoid claim that it is a shame to see employers wasting money paying out for this omission.

You can learn more about how to draft an employment contract here.


So, there you have it. If you are an employer and you pay particular attention to these 6 areas, you will reduce the chances of any claim being brought against you.

And even if such a claim is brought, you will have increased your chances of a successful defence greatly by taking some sensible precautions in the 6 areas outlined above.

The Employment Appeals Tribunal Annual Report for 2012-The Essentials

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.

Other Claims

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.

Waiting Period

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.

Proposed Changes

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.

You can read the full report here.

Attention Irish Employers-Do You Make These 13 Expensive Mistakes in Your Workplace?

Yes, it’s tough.

Being an employer in Ireland is difficult because there is a huge body of employment law which places onerous obligations on the employer.

In fact, many small employers think the deck is stacked against them.

They see reports in the media about employees getting payouts for a wide range of claims.

The bottom line it there are some key areas of danger for you as an employer.

Get it wrong and you will be on the wrong side of a claim. This will cost you time and money, and let’s face it: time is money. Time not spent on your business is wasted.

Lets take a look at some of the most common potential pitfalls for employers. All these areas give rise to claims on a regular basis and a trip to the Workplace Relations Commission (WRC) or Labour Court.

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)

2)      Payment of wages

The Payment of Wages act 1991 governs the payment of wages by an employer to the employee.

3)      Time and leave entitlements

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.

Many employers get caught out, not by direct discrimination but, by indirect discrimination.

5)      Health and safety

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.

6)      Transfer of undertakings

This covers situations where one business buys another in which there are employees. The Transfer of Undertakings Directive govern this area.

7)      Unfair dismissals

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.

8)      Redundancy

If you wish to make an employee redundant it had better be a proper redundancy and the procedure for choosing an employee for redundancy must be fair and non-discriminatory. Read more about redundancy law here.

9)      Trade union recognition/disputes

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.

13) Changing the Contract of Employment

The employer needs to be aware of what he/she can and cannot do when it comes to altering the terms and conditions of the contract of employment.

Always seek the advice of a legal professional, and don’t leave it too late if you wish to ensure you do not leave your business exposed to costly employment related claims.

The few bob you spend getting advice early in the day may turn out to be money well spent.

How we help employers.


7 Simple Steps For Employers to Avoid Costly Employment Law Claims from Employees


It’s an easy mistake to make.

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.

UPDATE May 2013

The Supreme Court, in May 2013, ruled that registered employment agreements are unconstitutional. You will find more updated information about registered employment agreements and employment regulation orders here.

Minimum requirements in employment law

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,

You need to be aware of statutory instrument S.I. No. 49/1998 – Terms of Employment (Additional Information) Order, 1998, which provides that you must give the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act (The Organisation of Working Time Act, 1997.)

2. Written statement of pay

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
  • Staff handbooks
  • 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.