Employment Claims

3 frequent mistakes employees make regarding their rights in the workplace

Are you an employee? Have you a problem or issue regarding your employment?

I receive a large number of queries from employees every day of every week and I notice the same sort of mistake being repeatedly made from employees at all levels of an organisation. These mistakes are understandable, but avoidable, and in this piece I will identify 3 such mistakes.

1.Failing to distinguish between a grievance and a breach of a legal entitlement

The rights of employees derive primarily from the constitution (Bunreacht na hÉireann), statutes on the statute book-for example, the Unfair Dismissals Act 1977-and the contract of employment between employer and employee.

If you cannot place your issue firmly and unequivocally into one of these 3 categories then the only route open to you may be to make a grievance internally in accordance with the grievance procedures in the workplace.

This may or may not produce a satisfactory outcome for you and there are other factors to consider, also. For example, your grievance may not be upheld and your relationship with the employer or a colleague may be degraded.

So, it is vitally important that you know whether you have a real remedy open to you or you may choose to fight a different battle on another day.

I have written articles about this topic previously, including this one: Have you a genuine employment case or merely a grievance? Answer these 4 questions

2. Mistaking occupational stress with actionable workplace stress

There is a gulf of difference between ordinary occupational stress and the type of stress that causes a psychiatric/psychological injury and leave the employer open to a negligence claim for damages arising from the injury.

The Courts have repeatedly held that occupational stress is normal and acceptable. Work is not play or recreation and there is bound to be a certain amount of stress involved. This is not enough to allow you bring a claim which might succeed and it can be easy for the employee to misunderstand this.

For example, I have had employees complaining to me about the stress arising from a workplace investigation or disciplinary process. I have to explain that I recognise it is certainly a stressful time but the employer has an obligation to investigate certain matters in the workplace-for example, allegations of bullying or sexual harassment or theft or gross misconduct in the workplace.

Sometimes, it is tempting to point out to an employee, “dude, you are accused of stealing €19,500 worth of stock/sexual harassment/bulling/discrimination/misconduct-of course the employer is going to investigate and, yes, of course it is stressful, but you cannot sue him for the stress”.

But no matter how tempting I have to calmly and patiently explain the difference between ordinary occupational stress and actionable stress that is so great that the employee’s mind has been overwhelmed and has suffered a breakdown.

Read more about  Occupational Stress and Actionable Workplace Stress-the Crucial Difference here.

3. Believing the contract of employment can only be interpreted literally

It is undoubtedly true that the contract of employment can only be changed with the consent of both parties, including the employee. This does not mean, however, that certain work practices cannot be changed by the employer, and such changes may not be contractual changes.

Also, there are certain terms implied into every contract of employment, even though they may not be express terms set out in the contract document itself. Some employees fall into the mistake of interpreting their contract in an extremely literal way and refusing to adapt themselves to changing circumstances in the workplace. This can lead to difficulties and tensions between employer and employee.


The three mistakes I discuss above are easy ones to make, especially for any employee who does not have frequent interaction with the law in general or employment law in particular. This is why it is a good idea to get some professional advice before you embark on a dispute with your employer, and why clarity is such a vital prize to seek.

If you don’t you may be picking a battle that you cannot win, or you might win but lose the war, so to speak.

The Employment Contract

Counter-offers in the Formation of Binding Contracts-What You Should Know


I am occasionally contacted by employees who have attempted to negotiate a contract of employment but difficulties have arisen and they want to sue for breach of contract.

The first thing that needs to be addressed, however, is whether a binding, enforceable contract has been entered into between the employee and the employer with whom he is negotiating.

It is not always crystal clear.

Let’s take a look at how binding contracts come into existence, shall we?

In order to form a binding contract you need three things:

  1. Agreement
  2. Consideration
  3. Intention to form legal relations

In assessing whether agreement has been reached between the parties the role of counter-offers is an important one..


For agreement to be reached an offer must be made and the offer should be clear and unambiguous as to the terms on which the offeror is willing to contract.

If statements are made in negotiations but are not intended to conclude in a contract these statements are called ‘an invitation to treat’.


Acceptance is a final and unequivocal expression of agreement to the terms offered.If the offeree intends acceptance of the offer he must communicate this acceptance to the offeror.


Counter-offers can muddy the waters, however, because if the response by the offeree is not a clear and unconditional acceptance of the offer the response may be considered a counter-offer which in turn may be accepted or ignored by the offeror.

If an offer is met with a counter-offer this has the effect of rejecting the original offer. And if the counter-offer is refused the initial offer cannot now be accepted.


You need to be careful in any negotiations you enter into, whether in negotiating a contract of employment or any other contract, and be clear as to whether you are making a counter-offer or merely seeking further information or clarification about the terms of the offer.

You can learn more about contract law in Ireland here.

The Employment Contract

Implied Terms of Employment in the Employment Contract-What You Should Know

implied term employment contract
Employment contract

When a contract of employment is being drawn up it is impossible to provide for every eventuality in the work relationship between employer and employee.

For this reason certain terms of employment will be implied into the contract, and together with the express terms set out in the contract, form the contract of employment.

What are they? When will an implied term arise? How will you know?

Firstly, it is not always clear cut as to whether a particular term is implied into a contract; but there are some fundamental terms that certainly are implied into every contract.

Let’s take a look at those, shall we?

And let’s also look at when this is likely to arise.

Conditions for Implied Terms

There are a number of tests which must be passed if you are to imply a term into an employment contract:

  • Custom and practice

If you are to rely on custom and practice to incorporate an implied term into a contract the customer should be “reasonable, notorious (well known), and certain.” This might arise, for example, where the employer pays an annual bonus for many years.

  • Business efficacy

This arises where a term is implied to give a contract efficacy-that is, to make sense of it and make it workable. This would occur where it is “obvious and necessary”, for example the obligation for a lorry driver having a driving licence.

  • Officious bystander test

This occurs where something is so obvious that it goes without saying, and a third party observer would agree that it was blatantly obvious

  • Conduct of the parties after the contract is made

The conduct of the parties after a contract has been made and employment has commenced can give rise to an implied term being incorporated into the contract. It would be necessary to show an intention by the parties to include it as a term.

  • Terms implied by statute

An example here would be if there is no notice period expressly stated in the contract it is implied that the statutory notice period will apply.

  • Terms implied by law

These would include the obligation on the employer’s part to provide work and on the employee’s part to follow reasonable direction and show good faith and loyalty to the employer.

terms implied by the constitution

Examples would be the rights to joint a trade union, rights to fair procedures in reaching decisions which affect the rights of the employee, and the right to earn a living.

Let’s take a look at some well accepted implied terms.

Common Implied Terms

  1. The mutual obligation to maintain trust and confidence in each other

Both employer and employee are obliged to conduct themselves in a way that can allow each party to have trust and confidence in the other party.

The employee will often, in a constructive dismissal case, point to the unreasonable conduct of the employer and claim that he could not be expected to continue to have trust and confidence in the employer.

The obligation works both ways and an employer who discovers an employee cannot be trusted with handling cash for example, no matter how small the amount, can reasonably claim that he cannot enjoy trust and confidence in the employee any longer.

2. The duty of loyalty

It is an implied term that the employee will faithfully serve the employer and will not act against the best interests of the employer.

3. Giving references

There is no obligation on the employer to give a reference, but where one is given there is an implied term in the contract that the reference is accurate and fair.

4. Grievance procedure

It is almost certainly the case that there is an implied term in the contract that the employer will deal with complaints or problems from employees fairly and in a timely manner. This is the case even where the employer does not have a grievance procedure or policy in the workplace.

The Employment Contract

The Terms of Employment (Information) Act, 1994-What Employers and Employees Should Know

terms of employment information act 1994
Employment contract

Are you an employer?

Have you given your employees written statements in accordance with the Terms of Employment (Information) Act, 1994?

You should, you know.

Are you an employee? Did you receive a written contract?

If you didn’t, you are entitled to one.

Terms of Employment (Information) Act, 1994

The Terms of Employment (Information) act, 1994 sets out the basic terms of employment which the employer must provide to the employee in a written form within 2 months of starting the employment.

Failure to do so will leave the employer open to a claim from the employee, pursuant to the Terms of Employment (Information) act, 1994. The maximum amount that can be awarded to the employee is 4 weeks’ remuneration.

The claim must be brought to the Workplace Relations Commission (WRC) and is a straightforward win or loss situation-that is, it is clear whether there has been a breach of the legal obligation or not.

Other employment related cases may involve arguments about facts, and the interpretation of previous decisions of Courts or tribunals, or the law as set out in statute.

But in this type of case the written statement/contract of employment was either furnished to the employee within the prescribed timeframe or it was not.

For this reason, employers would be strongly advised to give their employees the necessary statements within the 2 month window.

What must be in the written statement?

Firstly, we can look at section 3 of the Terms of Employment (Information) Act, 1994 which sets out the following matters:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

F5 [ ( 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, ]

(g) the rate or method of calculation of the employee’s remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

You must also consider regulations introduced in S.I. No. 49/1998 – Terms of Employment (Additional Information) Order, 1998 which set out the information which must be provided about rest breaks.

  1. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee’s employer shall, within two months after the employee’s commencement of employment with the employer, give or cause to be given to 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 that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

(2) In relation to an employee who has entered into a contract of employment before the commencement of this Order, the employee’s employer shall, if requested by the employee to do so, give or cause to be given to the employee, within 2 months of the request being made, 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 that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

Exclusions, Changes, and Complaints

Section 2 of the Act provides some exclusions:

2.—(1) This Act shall not apply to—

(a) employment in which the employee is normally expected to work for the employer for less than 8 hours in a week, or

(b) employment in which the employee has been in the continuous service of the employer for less than 1 month.

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month.

Section 6 of the Act provides for employees who were in the employment before the commencement of the Act. They can request a statement in accordance with section 3 and must be given it within 2 months of the request.

Section 7 of the Terms of Employment (Information) act, 1994 sets out how complaints will be dealt with, and provides for compensation of up to 4 weeks’ remuneration.


Employers should give their employees a written statement or written contract of employment within 2 months of the commencement of the employment.

If they don’t they are leaving themselves wide open for a simple, “open goal” type claim by their employee(s).


Need a contract for your business?

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.

Staff Handbooks

You will also need a staff handbook because you will need to provide certain basic procedures which will apply in the workplace.

For example, discipline, grievance, dignity at work policies/procedures. Also, your contract of employment will refer to these policies/procedures.

I can also supply you with a staff handbook.

Learn more about it here.

The Employment Contract

2 Common Myths About Employment Contracts

Employment Contract

These are easy mistakes to make, you know.

But I regularly come across two very common misunderstandings about contracts of employment.

  1. “I don’t have a contract”

One of the first questions I ask anyone who seeks my advice is, “send me a copy of your contract”. And often the reply is along the lines of: “I have been working there for 5/10/15 years but don’t have one”.

What this person means is that they don’t have a written contract or written statement of their terms of employment.

This does not mean, of course, that they don’t have a contract. Because they most certainly do.

They have shown up at the workplace, carried out a role or tasks requested by the employer, abided by the rules and regulations in the workplace, followed reasonable directions, showed up when rostered, and got paid by the employer.

That course of conduct between the parties-employer and employee-over a number of years is the contract of employment.

Simply because the terms and conditions of employment have not been committed to writing does not mean there is none in existence.

There is, but just not in written format.

When you buy a bus or train ticket you almost certainly will not have a written contract, but a contract does come into existence, nevertheless.

  1. “I never signed the contract my employer gave me so I’m not bound by its terms”

Just because an employee does not sign a written contract or statement of terms and conditions of employment does not mean that they are not bound by the terms and conditions contained in it.

Many perfectly valid, enforceable contracts are made without the need for a signed, written agreement.

Unless the employee has made known his objection to a particular term(s), notwithstanding the fact that the does not sign the written contract, he is almost certainly bound by the terms and conditions.

Because he has performed the contract over a period of time, and not raised any objections, it can be reasonably assumed that there is a valid, binding contract in place.

So, if that contract provides, for example, for a notice period on termination of 1 month from the employee, and the employee has performed all other terms and conditions of the contract over a period of time, then it is a term of the contract that the employee provide one month’s notice of his intention to leave.

Not doing so will leave him open to being sued by the employer for damages for breach of contract.

In these circumstances there is nothing preventing the parties from agreeing to a lesser period, that is the parties can agree to change it.

But one party on his own cannot change it unilaterally.


If you are an employer you are obliged to give a written statement of certain terms and conditions to the employee within 2 months of starting. You cannot force him to sign this statement, however, and it’s not absolutely necessary as he will be bound by it provided he performs it without objection.

If you are an employee the mere fact that you don’t have a written statement of terms of employment doesn’t mean you don’t have a contract; you do.