Staff Handbooks-What Employers Should Know

employee-handbook

“Good fences make good neighbours”.

This old saw is true because it reminds us that good boundaries and clarity between two parties leave less room for dispute or rows.

And so it is with the employer/employee relationship-the more clarity and less ambiguity, the less likely there will be costly disputes/claims.

Make no mistake: the most essential document governing the employment relationship is the contract of employment. However, if you do not want your employment contract to be too long and untidy you should be referring to your staff handbook when you are talking about grievance, discipline, dignity at work, anti bullying, and other important workplace policies.

For this reason it makes sense to have a separate staff handbook.

You can draw up a policy/procedure for just about anything in the workplace. But there are just a few policies which are absolutely essential and which will help you avoid losing employment related claims either in the Courts or at the Workplace Relations Commission or Labour Court.

If you go along to the WRC or Labour Court or Civil Court to defend a claim from an employee your job is going to be tremendously difficult if you have no policies or procedures in the workplace. You will immediately be placed at a disadvantage defending the claim, even if you have a perfectly good defense.

You are going to look like an indifferent, irresponsible amateur.

Before looking at the essential policies you should have in place here are some important points about staff/employee handbooks generally:

  • Make sure they are easy to read and understand
  • Publish it on your company website in addition to giving a copy to each new employee
  • Use a format that is easy to update
  • Ensure that new entrants to your workforce have read and understand the staff handbook and they indicate this in writing by their signature
  • Consider building time into induction training for new employees to allow for reading/understanding the handbook
  • Review and amend the policies regularly to ensure any changes in the law or best practice are reflected.

Most important policies and procedures in the workplace

The most important policies/procedures to have in place in Ireland are those covering

  1. Grievances
  2. Discipline
  3. Dignity at work (including anti harassment, anti bullying and equal opportunity)
  4. Health and safety

Is the staff handbook part of the employment contract?

This is an important question and should be clarified in the employment contract itself.

There is divided opinion as to whether it should be incorporated into the contract of employment or not.

My view is that it should not be incorporated as changing policies/procedures or incorporating new ones into the staff handbook can lead to the necessity to obtain the employees’ consent each time as it would be a change of the existing contract otherwise.

If the handbook is incorporated for example and the employer fails to follow fully the grievance procedure or within the timeframe specified he would be leaving himself open to a claim for breach of contract.

However reference should be made in the contract of employment to the staff handbook and the employee’s confirmation that he has read and understands the contents should be obtained.

Some employers prefer to issue all employees with a staff handbook as it allows them to monitor who has received one and who has not. However this can get expensive where there is a large number of employees and where there are regular changes/updates to the handbook.

This is why the internet and the company website offers a cost effective way of giving access to all and ensuring updates are easily carried out. However it is important that all employees have access.

Some other topics, in addition to the 4 essential ones above, which should be considered for the handbook include:

  • Sick leave/absence/pay
  • Deductions from wages
  • Collective agreements
  • Family friendly policies
  • Holiday leave and pay
  • Hours of work
  • Information and consultation arrangements (if any)
  • Overtime pay
  • Notice periods
  • Bank holiday working
  • Bereavement/compassionate leave
  • Communications
  • Internet and email usage
  • Use of company car/van/equipment/mobile phones/laptops
  • Dress code
  • Drugs and alcohol testing/usage
  • Expenses procedure
  • Gifts and hospitality
  • Incapacity and capability
  • Induction
  • Jury service
  • Performance appraisals
  • Redundancy
  • Reference policy
  • Travel policy
  • Whisleblowing
  • Training and promotion
  • Trade union activity
  • Smoking
  • Stress
  • Retirement and pension benefits

Some of the policies/procedures above would only really be relevant to large organisations. Smaller employers would not need many of them.

But any employer with at least one employee would still be well advised to ensure clarity in the employment relationship.

Because it will reduce the chances of a successful claim and lessen the chances of time consuming, and potentially bitter, disputes in the workplace.

Do you need a staff handbook?

I can supply you with one for €150 plus vat.

Update April, 2018

My handbook has been updated in April, 2018 to provide a GDPR policy as GDPR which came into force on 25th May, 2018 right across the EU.



Here’s what’s included in it:

Contents

1 Introduction

1.1 Welcome

1.2 Purpose of this Handbook

1.3 Company Background and Mission Statement

1.4 Employment Records

1.5 Data Protection

1.5.1 GDPR

2 Company Policies and Procedures

2.1 Disciplinary Procedures

2.1.1 Purpose of Policy

2.1.2 Scope

2.1.3 Policy

2.1.4 Offences

2.1.4.1 Misconduct

2.1.4.2 Gross Misconduct

2.1.5 Procedures

2.1.5.1 Informal Counselling

2.1.5.2 Formal Disciplinary Procedure

2.1.5.2.1 The Investigation Procedure

2.1.5.2.2 The Disciplinary Procedure

2.1.6 Appeals

2.2 Grievance/Dispute Procedures

2.3 Bullying and Harassment Policy and Procedure

2.3.1 Harassment, Sexual Harassment and Bullying

2.3.1.1 Harassment

2.3.1.2 Sexual Harassment

2.3.1.3 Bullying

2.3.1.4 Lack of Respect

2.3.2 Procedures

2.3.2.1 Informal Procedure

2.3.2.2 Formal Procedure

2.3.2.3 Investigation

2.3.2.4 Outcome

2.4 Health and Safety Policy

2.4.1 Principles applying to Health and Safety

2.4.2 Accident Reporting

2.4.3 Fire

2.4.4 First Aid

2.4.5 Personal Protective Equipment

2.4.6 Smoke-free Workplace

2.5 Equality Policy

2.5.1 Introduction

2.5.2 Objectives

2.5.3 Responsibilities

2.5.4 Structures

2.5.5 Recruitment and Selection

2.5.6 Career Development and Training

2.5.7 Complaints and Redress

2.5.8 Harassment and Bullying

2.5.9 Positive Action

2.5.10 Review and Monitoring

2.6 Redundancy Policy

2.7 Visitors

3 Terms and Conditions

3.1 Probationary Period

3.2 Hours of Work

3.3 Breaks and Rest Periods

3.4 Absence

3.5 Hygiene

3.6 Dress Code

3.7 Alcohol and Drugs

3.8 E-Mail, Internet and Telecommunications Use

3.9 Monitoring of Internet and Email Use

3.10 Confidentiality

3.11 Right to Search

3.12 Resignation and Termination

3.13 Lay-Off/Short-Time

3.14 Exit Interviews

3.15 Company Telephones

3.16 Application Information

4 Leave and Benefits

4.1 Annual Leave

4.2 Public Holidays

4.3 Maternity Leave

4.4 Paternity Leave

4.5 Parental Leave

4.6 Force Majeure Leave

4.7 Carer’s Leave

4.8 Adoptive Leave

4.9 Jury Duty

4.10 Compassionate Leave

4.11 Pension Policy and Plans

4.11.1 Pension Policy

4.11.2 Personal Retirement Savings Account (PRSA)

As you will see, it gives you the most important policies and procedures you will need in the workplace. If there is any particular policy that you  require for your business, let me know and I can probably do something for you.

When you order yours from me I just need the name-the legal entity-of your business. I can then supply the staff handbook by email and you simply print it off and give it to your staff.

You can purchase safely and securely through Paypal with this link:


When you purchase please email me to let me know and let me have the name and address of the employer.

Contracts of employment

Need a quote for a contract of employment? Contact me.

I can supply you with

  1. a template contract which you will complete yourself for each employee. This would involve things like commencement date, job description/role, rate of pay, and any other specific details for the individual employee and/or
  2. individual contracts for each employee-we get all the necessary details from you for each employee and draft the contracts for you.

Here is (nearly) all I know about contracts of employment: The Employment Contract in Irish Employment Law-The Facts You Should Know. I think you fill find it useful.

Here are my services for employers.

Work Practice or Contractual Entitlement? The Facts You Should Know

work-practice-contractual-entitlement

The question of what is a “work practice” and what is a contractual term of the employment contract is an important one, for both employees and employers alike.

Because the employer can change a work practice unilaterally. For example changing a break from 10 am to 11 am.

But a contractual entitlement or term cannot be changed without the employee’s consent.

Unilaterally changing the employment contract can lead to a claim for constructive dismissal or breach of contract.

In Irish law what is a “work practice” and what is a term of the contract is unclear. Clearly it is impossible to provide for every possible issue that might arise in the employment and disputes regularly arise as to what is a work practice and what is not.

And this creates serious problems for employers. Because while in some instances it is clear what is a work practice and what is not, in many situations the change falls into a “grey” area. This can lead to all sorts of problems for employers and employees.

Irish Courts have addressed the issue down through the years.

For example in in Kenny v An Post [1988] IR 285 there was a dispute as to whether the workers had a contractual right to a 15 minute break paid at the overtime rate. An Post withdrew this break and decided not to pay for the break in future. The Court had to decide this was a breach of contract.

The Court decided that this was a work practice, not a contractual entitlement, and “the work practice in question was one which the employer was entitled to terminate unilaterally at any time”.

In an English case, Cresswell v Board of Inland Revenue, the computerisation of the PAYE tax scheme was in issue. The Court held that “an employee is expected to adapt himself to new methods and techniques introduced in the course of his employment. On his side, the employer must provide any necessary training or retraining.”

In Rafferty v Bus Eireann the workers took issue with changes to rostering arrangements, the abolition of certain duties, and the replacement with new ones. Bus Eireann argued that as a result of serious financial difficulties they had to achieve cost savings and the changes sought to be imposed were not contractual alterations but changes in work practices which are effectively at the discretion of the employer to order.

The High Court agreed and concluded that the proposed alterations relate to work practices rather than conditions of service. J Kelly also said:

In the totality of the relationship between employer and employee certain aspects of it may truly be described as conditions of service whereas other aspects are not. Even though these other aspects may have important implications for both employer and employee they are nonetheless not be regarded as conditions of service…Accordingly there is a difference in law between conditions of service and work practices.

If any of the issues discussed here affect you, as an employer or employee, you would be well advised to seek legal advice.

You might also be interested in

How to Draft an Employment Contract-Express Terms That Should Be Included in a Contract of Employment

employment-contract-ireland

The employment contract in Irish law is made up of implied terms and express terms. There is nothing you can do about the implied terms.

That’s why great care should be taken about the express terms in the contract, and why corners should not be cut when you as an employer are putting contracts in place.

You don’t want to be staring at the small print later on when facing a claim for breach of contract or unfair dismissal and saying “did I really say that?”.

Implied terms fall into 4 categories:

1. Those implied by statute

2. Terms implied by custom and practice

3. Terms implied by law

4. Terms implied by collective agreements in unionized employment.

There is nothing the employer can do about these implied terms. However, the express terms-agreed between employer and employee-are a matter for negotiation and agreement between the parties.

What express terms should be included in a contract of employment?

1. The Parties

Who the employer is is a vital term and it may not be entirely clear unless set out in the contract.

1.1 Date of Commencement

The date of commencement will be very important to establish various statutory entitlements of the employee eg the protection of unfair dismissals legislation, redundancy entitlements etc.

2. Job Function/Description

The temptation for the employer here is to have as widely drafted a job description as possible.

However, this can cause problems if the need for redundancy arises as the employee may claim that their job description requires them to carry out duties different from those which the employer wishes to make redundant.

3. Hours of Work

The hours of work term of the contract should deal with

• Overtime (paid or not) (There is no statutory obligation on employers to pay  overtime. However, most employers pay higher rates of pay for work done outside normal working hours, for example at a rate of time and a half. This should be stated in your contract of employment).

• Shifts

• Breaks.

The most important piece of legislation in this area is the Organisation of Working Time Act, 1997.

It is advisable for the employer to also provide for the right to lay off or place employees on short time (there is no general right in law to do this).

The Protection of Young Persons (Employment) Act, 1977, the Conditions of Employment Acts 1936-44, and the Shops (Hours of Trading) Act, 1938 should also be considered.

4. Place of Work

It is advisable for employers to have a geographical mobility clause in the contract as an express term. Here is an example:

The company reserves the right when determined by requirements of operational efficiency to transfer employees to alternative work and it is a condition of employment that they are willing to do so when required.

However, the employer must act reasonably and responsibly in this regard.

Interestingly, a reduction in pay as a result of a contractually allowed transfer is not a breach of an implied term that there would be no unilateral reduction in pay.

5. Exclusive Service

Decisions in Irish employment law have held that employees have the right to work for another employer in their spare time. However, this work could not conflict with their duties of confidentiality and loyalty to their employer.

6. Probation

Any probationary clause should not exceed 12 months. It should also provide for an extension of the initial period (say 6 months) and should have a notice period less than outside the probation period.

Reference should also be made to the disciplinary procedures of the company not applying during the probation period. However, if this is the case, then a probationary policy should be drafted by the company setting out what procedure will apply during the probationary period.

Even though an employee is on probation, s/he is still entitled to fair procedures and natural justice when it comes to termination.

The wording of the probationary period is also important. The District Court in Ireland has held that the following clause gave rise to an entitlement to the employee to be paid for the remaining 5 months of a probationary period when he was dismissed after one month:

The first six months of this contract shall be a probationary period.

This one clause is a good example of why you should have a legal professional draft any contract of employment you require.

At common law, it appears that the employer has an implied right to terminate during the probationary period on the giving of specified or reasonable notice. This is why provision should be made in the contract for a shorter notice period during the probationary period.

7. Term or Duration of Contract

The term or duration of the contract is only applicable for a fixed term or specified purpose contract.

8. Salary/Pay

This, clearly, is a very important clause in any contract of employment. Setting out basic salary is straightforward; bonuses and commissions can cause problems if not set out clearly.

The employer will seek to have the payment of a bonus at his/her discretion; employees will be keen to see how they can become entitled to a bonus.

Termination during a bonus period should also be clarified and agreed. (Read the law surrounding the payment of wages also)

9. Holidays/Annual Leave

Minimum holiday entitlements are provided for in the Organisation of Working Time Act, 1997. This act vests in the employer the right to determine when holidays are taken.

However, this clause should also make provision for when holidays can be taken as well as recognising that any extra holidays would be over and above the statutory entitlement to holidays and public holidays.

10. Company Car

The entitlement to a company car should be set out in this clause with clarity as to the make, model, value, etc. allowable.

11. Sick Pay

The sick pay clause will set out whether the employer operates a sick pay scheme or not. There is no general entitlement to sick pay in Ireland.

However, this entitlement may be implied from custom and practice in the workplace.

The employers may operate a sick pay scheme or an income continuance plan or health care insurance entitlements.

This needs to be clear from the outset in the employment contract as sick pay is an area which causes great difficulty for both employer and employee in the absence of clarity.

12. Pension

If a pension is part of the remuneration package, reference should be made to it in the contract and if there is a company pension scheme it is important that an employee is not excluded in such a way as to leave the employer open to a successful claim for direct/indirect discrimination.

13. Retirement Age

There is no statutory retirement age in Ireland (save for in the public service and a small number of industries). For this reason, a retirement age should be spelled out in the contract, if one is desired.

It is worth noting that just because there is a retirement age specified in the pension scheme does not mean that there is an implied retirement age in the contract of employment.

An interesting case dealing with age, retirement age, and fitness to work is the Donegal County Council v Porter [1993], Irish High Court.

14. Grievance Procedure

The method of processing grievances in the employment should be referenced here.

Employees should be bound to exhaust the internal grievance procedure first before resorting to outside bodies.

The statutory code of practice, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (Statutory Instrument 146/2000) contains the principles to be applied by the employer in any grievance and disciplinary procedure.

15. Disciplinary Procedure

Employers should have a disciplinary procedure to ensure fair procedures and natural justice where necessary.

SI 146/2000 sets out the basic principles which any disciplinary procedure should follow. These include:

• What will happen to deal with a complaint/allegation

• How many stages will be followed in each event

• The employer’s right to choose which stage to commence the procedure and the penalty to be imposed

• The right of representation of the employee

• Whether there is a right of appeal to any decision taken to impose a penalty.

16. Restrictive Covenant

This clause deals with the right of employees to compete with their former employer once they have left employment with that employer. There are 2 aspects to any ‘non compete’ clause:

• The common law entitlement of the employer to protect trade secrets and confidential information

• The Competition Act 1991.

Regardless of the express term in any contract of employment dealing with this area, the Courts recognise the common law right of the employer to protect confidential information and trade secrets-even when the employment relationship is terminated.

However, there is no common law restriction on an employee competing with a former employer once she leaves employment. This is why a ‘restrictive covenant’ is a good idea in the contract-to protect, for a reasonable time and over a reasonable geographic area, the employer’s legitimate interest.

This is not a restriction on normal trade or general competition post-employment though; it must be a restriction to protect a specific legitimate interest.

However, if the employer breaks or repudiates the contract, he will generally be unable to rely on any restrictive covenant in this connection.

The Courts will also recognise a common law duty of obligation, fidelity, and loyalty in all contracts of employment. This duty has been held to include an obligation not to compete with the employer while in his employment.

There is no common law restriction on former employees canvassing or soliciting business being done by their former employer.

However Courts will recognise the validity of restrictive covenants in contracts of employment provided

  • the employer has a legitimate interest to protect
  • the conduct/activity sought to be restricted must be reasonable
  • the duration of the restriction must be reasonable
  • the geographical extent of the restriction must be reasonable.

It is worth noting that where an employer repudiates the contract or is involved in a fundamental breach he will normally be unable to rely on restrictive covenants in the contract which crystallized as a result of the employer’s action.

Springboard injunctions

An injunction may be granted to an employer where a departing employee seeks to rely on trade secrets or confidential information belonging to the former employer as a springboard to launching a new business.

Competition Act, 1991

The Competition Act, 1991 does have some impact on employment contracts, even though many think that the Act is inappropriate for governing the  employer/employee relationship. The most important case considered by the competition authority was Apex Fire Protection v Murtagh [1993].

17. Termination of Contract

The notice period for termination of employment is a critical clause. If there is none and the contract is silent in this regard, then ‘reasonable’ notice must be given by the employer.

Litigation over what is “reasonable” can be avoided very easily by providing a specified notice period in the contract and will also avoid a legal action for wrongful dismissal provided the notice period is given.

This will vary from contract to contract depending on a number of factors such as job function, length of service, age of employee, custom and practice, etc. In short, what is ‘reasonable notice’ in each case will depend on the facts of the individual case, bearing in mind the factors outlined above.

It is strongly advisable for the employer to specify a notice period in the contract in order to avoid a claim for wrongful dismissal.

Unless it is stated in the contract, notice does not have to be in writing; but it does have to be clear and unequivocal.

Notice given during times of leave or illness is valid, except for during maternity leave which is protected.

The notice period in the contract cannot be less than that provided for in the Minimum Notice and Terms of Employment Act, 1973 (as amended).However, if an employee is dismissed for misconduct s/he loses his/her entitlement to notice.

The employment does not come to an end until the end of the notice period, even where a person is not required to work the notice period and has been ‘paid off’.

Damages that can be awarded to employees for dismissal are generally limited to recoverable losses to which the employee was contractually entitled, but not punitive damages.

18. Search Clause

A search clause is commonly used in many contracts allowing the employer to search the employee’s locker, baggage, vehicle, etc.

Without this search clause, any search, without consent, could be considered to be an assault.

19. Patents, Inventions, and Copyright

Unless there is agreement to the contrary, any copyright in material which is made by the employee in the course of employment is the property of the employer. The same principle applies to research and development work carried out which leads to an invention.

20. Share Options

A share options clause may be necessary. Provision should be made for the employee moving location or changing job function.

21. Bullying and Harassment

An anti-bullying and harassment policy should be appended to the contract of employment as the employer is obliged by law to prevent bullying and harassment occurring in the workplace.

22. Internet and email

Reference should be made to the company’s policy on internet access, email and internet use. A separate policy in this regard should be provided by the company to the employee.

23. Resignation of Office or Directorships

Resignation from offices held, including directorships, should be provided for in the contract of employment.

24. Proper Law

The law governing the contract should be spelled out and is very important where an employee may be required to work abroad.

25. Other

Other clauses which may be included, depending on the specific requirements of the employer, may include

• Wearing of uniforms, dress code

• Punctuality and attendance

• Responsibility for tools, property, uniforms, clothing, boots, etc

• Requirement to hold a driving licence

• Compassionate leave

• Parental leave (subject to statutory entitlements)

• Work standards

• And more.

Work Practice or Contractual Provision?

The difference between a contractual provision and a work practice is very important. Read about the significance here.

If you are an employer and you don’t have existing contracts of employment for your employees, or you are concerned about the contracts you do have, we provide a professional, cost effective contract review and drafting service.

Are you an employer?

Need a quote for a contract of employment? Contact me.

We can supply you with

  1. a template contract which you will complete yourself for each employee. This would involve things like commencement date, job description/role, rate of pay, and any other specific details for the individual employee and/or
  2. individual contracts for each employee-we get all the necessary details from you for each employee and draft the contracts for you.

Teachers and Fixed Term Contracts-the Essentials

Fixed term contracts are very common in the teaching profession in Ireland.

teacher-fixed-term-contract

This is due to a number of factors including

• The DES (Department of Education and Skills) sanctioning temporary teaching posts for a school year, rather than approving permanent posts or contracts of longer duration

• Teachers taking leave from the school on a career break, maternity leave, sick leave, carer’s leave, parental leave, job sharing, secondment etc. with the subsequent need for the school authority, such as the  Board of Management, to find a replacement.

This replacement will be given a fixed term contract.

The teacher’s contract of employment will be with the managerial authority of the school such as the VEC committee or Board of Management.

In the primary education sector the Board of Management of the school will be the employer, even though the teacher is paid by the DES.

For Boards of Management in the Primary education sector, all the normal rules and laws discussed elsewhere on this site apply when granting a fixed term contract. Additionally, there may be the requirement to make a job offer subject to certain conditions, eg

  • approval of the Patron (where necessary),
  • Garda vetting,
  • registration with the Teaching Council,
  • a certificate to teach Religious Education (if appropriate),
  • pre employment medical screening by Medmark,
  • and approval of the Minister for Education and Skills.

See also equality and discrimination in the workplace which sets out the legal grounds for schools to discriminate on religious grounds when taking on employees.

Fixed term contracts for teachers will fall into one of two categories:

• Fixed term where the duration of the contract is known or

• Specified purpose contract where the end date may be uncertain (such as maternity leave cover or illness cover).

Fixed term contracts for teachers will normally not exceed the school year, which runs from 1st September to 31st August.

Objective Grounds

It is critically important for the Board of Management to inform the teacher in the contract why they are being employed on a temporary basis, rather than being offered a permanent contract or a contract of indefinite duration, and how the contract will be determined/terminated.

Here is an example of a clause you may use when granting a contract to a teacher who will be covering for a teacher on a career break:

This contract is a Fixed-Term Contract of …. duration and is offered due to the absence of a permanent teacher in the school who is currently on career break. The contract will end on the termination of the career break. A career break can be sanctioned for a period of 1 year with annual application to renew up to 5 years.

In addition, where the Board decides to renew a fixed term contract, it is vital to inform the teacher in writing beforehand why it is not offering a permanent contract and to set out the objective justification for this.

This notice in writing should be given to the teacher at the latest by the date of renewal.

Renewal of Fixed Term Contracts

Renewal of a fixed term contract may lead to the entitlement to a contract of indefinite duration arising. (Click the link to see the circumstances where a CID may arise)

All of the other protections and obligations arising from the Protection of Employees (Fixed Term Work) Act 2003 will, naturally apply.

(See Department of Education and Skills-employing a teacher )

For a more detailed look at fixed term contracts

Recommended: Education Law in Ireland

Haddington Road Agreement and Contracts of Indefinite Duration

The Haddington Road agreement saw some significant changes brought some significant changes to a teacher’s right to a CID and reduced the service requirement from 4 years to 3.

The relevant circulars are 64/2013 for Primary teachers and 0005/2014 for secondary teachers.

Then, further improved conditions were introduced for teachers pursuant to circular letter 23/2015 which implemented the recommendations of the Ward Report, a report prepared by Peter Ward SC. The huge change in respect of CIDs brought about by this report and circular letter was a further reduction in the service requirement for primary and secondary teachers from 3 years to 2.

Yes, 2 years’ continuous employment is all that is required for a CID, whereas if you are not a teacher you will need 4 years’ service, as explained above.

Are You Entitled to a Contract of Indefinite Duration? Employed on Successive Fixed Term Contracts?

contract-of-indefinite-duration

A contract of indefinite duration (CID) is similar to a permanent contract but is not defined in statute. It arises by operation of law under the Protection of Employees (Fixed Term Work) Act, 2003.

The Protection of Employees (Fixed Term Work) Act, 2003 provides under section 9(3) that a contract of indefinite duration will arise by operation of law if a contract is awarded in breach of sections 9(1) or 9(2) of the act.

What this means as follows: If an employee is employed on 2 or more successive fixed term contracts in continuous employment for a period of 4 years then any attempt to give that employee a further fixed term contract is unlawful and void and the employee is entitled to a contract of indefinite duration.

There is one major caveat here though: if the employer can justify the award of a further fixed term contract on objective grounds then there is no breach of the Protection of Employees (Fixed Term Work) Act, 2003 and no entitlement to a contract of indefinite duration.

Objective Grounds

What are objective grounds justifying the renewal of a fixed term contract and not the granting of a contract of indefinite duration?

Objective grounds are grounds that are objectively justifiable by the employer:

1. They must correspond to a real need and legitimate objective of the employer
2. They must be appropriate to achieve this objective
3. They must be necessary to achieve this objective.

If an employer intends renewing a fixed term contract, and not granting a contract of indefinite duration, then the employer must state in writing to the employee the objective grounds for a further fixed term contract.

This written notice must be given to the employee at the date of renewal at the very latest.

Continuous Employment

Continuous employment is defined in the First Schedule to the MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973 and the issue of whether employment has been continuous is not entirely straightforward.

The Rights Commissioner service and the Labour Court have held that breaks of up to 3 months were not sufficient to break an employee’s continuous service.

Therefore it is strongly recommended that if you are an employer or employee you should obtain legal advice from a solicitor who is experienced in employment law matters.

Case Law

Two very interesting relatively recent cases-2011 and 2013-of the Labour Court throw further light on the entitlement to a contract of indefinite duration.

The cases are DUBLIN INSTITUTE OF TECHNOLOGY AND EMILIA MIHAYLOVA (July, 2013)and REVENUE COMMISSIONERS AND WILLIAM BEARY (January 2011).

If you think you may have an entitlement to a contract of indefinite duration (CID) you should read both of these cases because they will give you a very good indication of how the Labour Court interprets the relevant legislation.

Successive Employment?

Here are some interesting extracts from both decisions:

In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous.

Continuity of Service?

The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the words “continuous” as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.

In that context it is necessary for the Court to consider if the Claimant was employed on a serious separate contracts, each of which was terminated by dismissal, or whether the period between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

There is authority for the proposition that the concept of lay-off can have wide ambit. The High Court, in An Post v McNeill[1998] ELR 19, accepted that a lay-off is not subject to any temporal limitation. In Irish Shipping v McAdams,Unreported, High Court, Murphy J. 30th January 1987, the Court declined to accept that the Employment Appeals Tribunal had erred in law in finding that two of the Claimants were on lay-off at a time when they were actually in the employment of another shipping line. Moreover, the Court is obligated, as a matter of European law, to interpret and apply the relevant provisions of domestic law, as far as possible, so as to achieve the result envisaged by the Framework Agreement annexed to the Directive. As is clear from Clause 5.1 of the Framework Agreement, the result envisaged by the Directive is to prevent the abuse ofsuccessivefixed-term contracts. This suggests that the Court should seek to interpret, as far as possible, the expressioncontinuous, as used in the Act, as coterminous with the expression successive, as used in the Framework Agreement.

In relation to the facts of the instant case Counsel for the Respondent correctly submitted that the expiry of a fixed-term contract without its renewal is a dismissal. Hence, on the literal application of the First Schedule of the Act of 1973 there could be no continuity between one fixed-term contract and the next unless it was immediately renewed. In the Court’s view such a result would be at variance with the object pursued by the Directive and could not be adopted.

The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive. In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term “lay-off” such as was done in Department of Foreign Affairs v A Group of Workers[2007] ELR 332. While s.11 of the Redundancy Payments Act 1967, which defines the notion of law-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.

For all of the reasons set out above the Court is satisfied that for the purpose of ensuring that the Act is applied in harmony with the Directive a purposive or theological construction should be to applied to the notion of lay-off in the circumstances of the instant case. On that construction where it can be shown that at the time the Claimant’s assignments ceased it was probable that the cessation in employment would not be permanent, a lay-off came into being. On this construction it could be held that constructive notice to that effect was given by virtue of the facts known to both parties at the relevant time.

It is clear that on each occasion on which the Claimant’s employment ceased it was because the purpose of the contract has come to an end, either because a project had been completed or because the person for whom he was providing cover returned to work. In either case the employment ceased because the Respondent no longer had work available for the Claimant to do. Hence, the net question arising is whether the breaks in service are to be regard as lay-off or as dismissal followed by re-employment under a new contract. This is essentially a question of fact and degree. It turns on whether, at the time each assignment came to an end, it was reasonable in the circumstances then prevailing to believe that the cessation would probably not be permanent. Obviously the standard of reasonableness does not require the parties to know with any degree of certainty that the employment will resume; it merely requires that they have reason to believe that it will probably resume.

Can a Lay-Off extend beyond 26 Weeks?

A further question which arises in this case is whether the break of 35 weeks in the Claimant’s employment between 20th February 2004 and 26th October 2004 is capable of being construed as a lay-off. The Rights Commissioner took the view that a break in excess of 26 weeks, even if a period of lay-off, breaks the continuity of employment. The Rights Commissioner formed this view based on her interpretation of paragraph 10 of the First Schedule of the Act of 1973.

Paragraphs 1 to 7 of the First Schedule relate to the circumstances in which employment is to be regarded as continuous. Paragraphs 8 to 13 deal with service which is to be regarded as computable. As already observed, Paragraph 1 of the First Schedule provides, in effect, that all service is to be deemed continuous unless terminated by dismissal or resignation. Paragraph 3 provides that a lay-off shall not amount to a dismissal. Consequently, a lay-off, regardless of its duration, does not break continuity of service. Paragraph 10 of the First Schedule deals not with continuity of service but with computability of service. The effect of this provision is that, for example, in computing the notice to which an employee is entitled under the Act of 1973-2005, periods of service while on lay-off which exceed 26 weeks are to be disregarded. It is clear that while such service is not computable, an absence on lay-off in excess of 26 weeks does not break continuity of service. This was made clear by O’Sullivan J inAn Post v McNeill[1998] ELR 19. This is a matter of considerable importance in determining if the Claimant’s case falls to be dealt with under s.9(1) or s.9(2) of the Act.

It is clear that the Claimant was employed on a succession of fixed-term contracts from 1st September 2002 until 31st October 2008. The Court is satisfied that all of the breaks during this period, between the termination of one contract and the commencement of another, should properly be regarded as periods of lay-off. Hence, the Claimant was continuously employed by the Respondent, on successive fixed-term contracts, between the aforementioned dates.

Since the Claimant first entered employment with the Respondent prior to the passing of the Act his claim falls to be dealt with under s.9(1) of the Act. The Claimant completed his third year of continuous fixed-term employment on 31st August 2005. The Respondent was then entitled to renew the employment for a fixed-term on one occasion only. Hence, the renewal of the Claimant’s contract for a further fixed-term on 2nd October 2006 contravened s.9(1) of the Act. Consequently, prima facie, that contract became one of indefinite duration by operation of s.9(3) unless that renewal was saved by s.9(4) of the Act.

Objective Justification

The Court must now turn to consider the question of whether the renewal of the Claimant’s fixed-term employment beyond the point normally permissible by s.9(1) was justified on objective grounds within the statutory meaning of that term.

Section 7(1) of the Act sets out the test for objective justification for the purposes of the Act. It provides: –

7.(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

This formulation is derived from the jurisprudential criteria established by the ECJ against which indirect discrimination may be justified. This approach was first applied in a case of gender discrimination in Bilka-Kaufhaus GmbH v. Weber Von Hartz[1986] ECR 1607

It is essentially a three-tiered test which requires that the impugned measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate”to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective.This test imports questions of proportionality and whether alternate means having a less discriminatory effect are available to achieve the objective in view.

In essence the case law of the ECJ equates reliance on objective justification of a discriminatory practice with a derogation from the obligation to apply the principle of equal treatment. InLommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430, at par 39, the ECJ pointed out that: –

according to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).

In C-212/04Adeneler and others v. Ellinikos Organismos Galaktos[2006] IRLR 716 the ECJ pointed out that the objective grounds relied upon must relate to real and concrete circumstances concerning the work to which the contracts relate. The Court also drew a distinction between what it referred to as work which is intended to meet the fixed-and permanent needs of the employer and that which is intended to meet transient or purely temporary needs.

It is the Respondent’s case that the Claimant was employed to provide cover for temporary absences of permanent staff and that the service which he provided was, by its nature, intended to meet its temporary needs. It claims, moreover, that the need to provide temporary cover is a legitimate aim and that the use of fixed-term contracts is an appropriate and proportionate response to that need. The Respondent further submitted that it would be disproportionate to require it to employ staff over and above its normal need to meet occasional and transient vacancies that arise.

The Union argues that there is a permanent need for staff to provide cover for absences and that, in that sense, the work undertaken by the Claimant should be regarded as part of the fixed and permanent needs of the Respondent. In advancing that argument the Union referred to the large number of temporary staff employed by the Respondent at any time as evincing a real and permanent need for staff to provide cover for temporary absences.

The Union contends that there are no objectively justifiable grounds upon which the Claimant could be denied a contract of indefinite duration.

Type of Contract to which the Claimant could be entitled

In considering the question of objective justification the type of contract to which the Claimant would become entitled if s. 9(3) of the Act were to take effect in the normal course is highly relevant. The Union’s firm position is that the Claimant is entitled to a contract of indefinite duration as a permanent full-time clerical officer on the same terms and conditions as apply to all other clerical officers in the Civil Service. In that regard it is noteworthy that in the period from 6th January 2003 when the Claimant was first placed on a panel, to 31st October 2008, when his final placement terminated, he worked a total of 187 weeks. The total number of weeks in this period was 303. Hence he was actively employed for 62% of the available time. It is thus clear that the Claimant’s employment with the Respondent was essentially part-time in nature in that he worked less hours than a comparable full-time employee when measured over a period of up to 12 months. On this point the Court adopts the definition of part-time work contained at s.7(1) of the Protection of Employees (Part-Time Work) Act 2001which is a statute inpari materiawith the Act.

The decision of the High Court inMinister for Finance v McArdle[2007] ELR 165 is authority for the proposition that where a fixed-term contract transmutes to oneofindefinite duration by operation of law the resulting contract is identical to that from which it is derived in every respect other than in regard to its tenure. Consequently a fixed-term worker cannot accrue a better contract than that which he or she held on a fixed-term other than in respect to the circumstances in which the contract will come to an end. It would seem that in circumstances in which the Claimant was only employed for approximately 62% of the time of a full-time clerical officer he could not accrue, by operation of s.9(3) of the Act, a contract which would entitle him to employment in a full-time capacity.

Based on this employment pattern it appears that the requirement for the Claimants services, throughout the period of his employment, was intermittent and irregular. Against that background there would appear to be real and concrete circumstances concerning the nature of the service which the Claimant provided over the currency of his employment which could amount to objective justification for not affording the him the type of contract which he seeks even if he could accrue such an entitlement under the Act. In particular, the Court is satisfied that the Respondent is pursuing a legitimate need in not recruiting more regular full-time clerical officers that are necessary for the discharge of its revenue collecting functions while maintaining arrangements for the filling occasional vacancies as they arise. Moreover, the engagement of staff as and when required is an appropriate means of achieving that objective and appears to be the only practical way in which the objective can be pursued.

Accordingly, the Court is satisfied that there were objective grounds which justify the Respondent’s failure to appoint the Claimant to a permanent full-time clerical post.

However, as the Court has found, the Claimant accrued a prima facie entitlement to a contract of indefinite duration by reason of the duration of his employment on fixed-term contracts. The grounds relied upon by the Respondent as providing objective justification for not affording the Claimant such a contract are valid in so far as they relate to the type of full-time post which he claims. However, the Court cannot accept that the reasons advanced as objective justification (the burden that would be imposed on the Respondent by having to employ full-time permanent staff to meet occasional and transient vacancies) could apply with equal force if, as appears to be the case, the only type of contract of indefinite duration which the Claimant could have accrued would be one which mirrored the pattern of his fixed-term employment.

At the request of the Court both parties made submission on the type of contract to which the Claimant would be entitled if successful in his claim. Both parties rejected the notion that the Claimant could have a form of permanent or indefinite duration contract to provide relief cover in accordance with the pattern previously obtaining. In these circumstances the Court must hold that the by operation of s.9(4) of the Act the Claimant did not accrue an entitlement to a contract of indefinite duration in the post of full-time clerical officer.

Determination

For the reasons set out herein the Court determines as follows:-

The Claimant did not accrue a contract of indefinite duration by operation of s.9(3) of the Act.
Revenue Commissioners and William Beary, 2011, Labour Court

Teachers and Contracts of Indefinite Duration

The rules for teachers and their entitlement to a contract of indefinite duration are changed since the Haddington Road Agreement. You can read more about teachers and fixed term contracts here.