24 Random Questions From My Website (December, 2017) About Employment Law In Ireland

questions and answers

When I look at the phrases which led to people visiting my website EmploymentRightsIreland.com I can see the questions they are trying to find answers for.

I have just taken a look at the search logs for December, 2017 and the usual questions have come up: questions about holiday entitlements, public holiday entitlements, and disciplinary procedures.

The same, or similar, questions come up each month so the questions in this article from December, 2017 data are representative of the types of questions employees and employers ask.

I have written extensive articles about this topics which you can find here:

  1. How to calculate your holiday entitlements, including public holidays
  2. Disciplinary procedures, including how to carry out a disciplinary procedure step by step

In this piece, however, I want to answer some other specific questions from the search logs.

Let’s go.

Q 1. difference between terms of employment and conditions of employment

 

  1. There is none. Terms and conditions of employment are essentially the same thing and the phrase, terms and conditions, is usually used to describe the provisions of the employment contract.

Q 2. do irish employers have to pay 20 annual leave days

 

  1. The legislation actually provides for a maximum of 4 working weeks, but yes, the employee is entitled to paid leave each year. The article linked to from number 1 above tells you exactly what the employee is entitled to by way of annual leave, regardless of whether he/she is full time or part time.

Q 3. what does a indefinite contract mean

 

  1. This question refers to a contract of indefinite duration (CID). You can learn more about Contracts of Indefinite duration here. If you have had a series of fixed term contracts you may be entitled to a contract of indefinite duration, which is, in effect, a permanent contract.

Q 4. what are principles of natural justice in ireland

 

    1. The principles can be encapsulated in 2 Latin phrases:
    2. Nemo iudex in causa sua (no man is a judge in his own cause) and
    3. Audi alterem partem (here the other side)

This can be summed up as holding that the person against whom an allegation has been made should have the chance to put their side of the story, and the decision maker should be unbiased and engage in a fair procedure before arriving at a decision.

You can watch a short video about the 2 fundamentals of natural justice in civil law in Ireland here.

Q 5. i havent signed any warning before can i get fired with verbal warning?

      1. It it immaterial whether you have signed for a disciplinary warning or not; let’s face it, if refusing to sign for a warning could prevent the employer from using the disciplinary procedure he would never be able to terminate an employee’s employment. Therefore, you will still have the warning on your record, whether you signed or accepted it or not.

Q 6. can you opt out of the working time directive in ireland

 

      1. No, the working time directive has led to working time regulations being part of the fabric of Irish employment law and there is no opt out.

Q 7. whats happens if i have been out of work sick for a year

 

      1. Ultimately the employer may seek to terminate the employment contract on the basis of the employee’s inability to perform the work for which he was employed. Before doing this it would be desirable for the employer to get an up to date medical report to ascertain the position and whether the employee will be able to return to work in the near future. If not, the employee may be terminated on the ground of incapacity.

Q 8. irish law on references for work

 

      1. I have written about references in the past. In summary, there is no obligation on the employer to give a reference for a departing, or departed, employee. In fact, some employers have a policy of not giving references. If the employer does give a reference, though, it should be accurate and not misleading.

Q 9. how many verbal and written warnings

 

      1. There is no hard and fast rules or regulations about how many warnings an employer should give an employee. On occasion, an employee can be summarily dismissed without any warnings if the conduct is so bad that it warrants instant dismissal. Most disciplinary procedures will provide for 3 or 4 warnings, but if you are an employee you need to read your workplace disciplinary procedure to be sure.

Q 10. can employer impose electronic time system

 

      1. Yes.

Q 11. smoke break entitlements ireland

 

      1. There is no legal entitlement to a smoke break. Your entitlements to rest breaks, for smokers and non smokers, are the same. Read about rest breaks in the workplace here.

Q 12. legal fees wrc

 

      1. If you bring a claim to the WRC (Workplace Relations Commission) both parties pay their own legal expenses/fees.

Q 13. as an employer can i decide when my employees take hoildays

 

      1. Yes.

Q 14. in irish law can you be contacted about work when your off sick

 

      1. Yes, but the employer needs to be careful about this. However, there is no legal impediment to the employer contacting an employee, and it is advisable to do so to see how the employee is and enquire about his/her welfare.

Q 15. in republic of ireland can you be made work overtime

 

      1. The situation regarding overtime should be set out in your contract but, generally, an employee being requested to overtime and refusing may be guilty of misconduct by virtue of refusing a reasonable request of the employer. There would need to be a bit of give and take on both sides, though, and the contract of employment should be reviewed carefully.

Q 16. can i get wages owed after 7 years in ireland

 

      1. No, you are out of time. The statute of limitations for contract litigation is 6 years.

Q 17. what s the next step if you are on final warning?

      1. Dismissal.

Q 18. do you have to recognise a trade union

 

      1. No. The employee has a right to be a member of a union but the employer does not have to recognise the union in the workplace and can negotiate directly with the employee.

Q 19. does the law permit an employer to charge an employee for misconduct which had occurred in the past fixed term of contract?

 

      1. No. If an employee is guilty of misconduct he should be subject to the disciplinary procedure in the workplace but charging an employee a financial penalty would be inappropriate and unsound.

Q 20. how many sick days are you entitled to in ireland

 

      1. It will depend on your contract of employment. If the contract does not allow any sick days there is no legal entitlement to be entitled to paid sick days.

Q 21. how much do i get on the sick in ireland

 

      1. It depends on whether your employer operates a sick pay scheme or not. Some do, but there is no legal obligation to pay an employee while he/she is out sick, unless it is in the contract. The employee may be entitled to illness benefit from the Department of Social Protection.

Q 22. am i entitled to a paid break

 

      1. No.

Q 23. does tupe apply to ireland

 

      1. Yes, it certainly does. You can learn more about TUPE here.

Q 24. what should be included in my employment contract

 

      1. Learn what should be contained in the contract of employment here.

Conclusion

This is only a sample – from one month, December, 2017- of the questions that people are asking on my website. The other big areas that cause people concern are unfair dismissal, bullying, disciplinary procedures, and holiday pay.

There is a lot more information about all aspects of employment law in Ireland on http://EmploymentRightsIreland.com

Employment Law Articles for Employers and HR Professionals

employment law articles

Are you an employer? Do you work in human resources?

I have written quite a lot of articles/blog posts on this site about employment law in Ireland.

The questions I receive from employers and people charged with the HR function in an organisation are completely different from those I receive from employees.

Much of the information on this site will be useful for both employers and employees. For example the extensive articles on unfair dismissal, redundancy, health and safety, and the contract of employment.

But on this page I want to focus on articles and blog posts that focus on the specific issues that employers and hr people contact me about. I hope you find them useful.

How Safe Are You From Making This Costly Mistake?

workplace bullying

It’s an easy mistake to make.

I see it all the time, to be honest.

One day recently, I had to say this to a nice young woman who came to me for employment law advice:

I’m sorry to disappoint you, but I think you are wasting your time with this”.

And to a man a few days before: “I have to tell you that I think you are in danger of digging a big hole for yourself. My advice is that you forget about this and go back to work, keep the head down, and do your best.”

And another: “You asked me for a straight answer and that is what I am about to give you: forget about this. Accept it, and move on, or you are in danger of talking yourself out of a job”.

And “Sometimes, you may be treated unfairly or unprofessionally, but that doesn’t mean there is a legal cause of action or claim”.

It appeared to me that there was a growing number of people who, one way or another, left my office disappointed.

It’s inevitable that you begin to second guess yourself.

I began to question myself.

Was my judgment off: was I too conservative?

Was I overlooking potential causes of action?

Was I expecting too much from employees?

And too little from employers?

But when I thought about it I noticed it was not just in relation to employment law that I’ve had to say these things, either. Family, litigation, personal injury, property, landlord and tenant.

And then I read the Supreme Court decision in the alleged bullying case involving a special needs assistant, Una Ruffley, and the Board of management of the primary school in Kildare where she worked.

And one of the Judges seemed to articulate precisely what I had been saying to the various hopeful employees who came to me.

Mr. Justice Peter Charleton, in his decision, said “Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action.”

Another way of saying this, in plain English, is “shit happens”.

And that is what I was saying to the different people I have referred to above.

I was doing is as diplomatically as I could, but I had to call a spade a spade.

It’s human nature that nobody wants to be the bearer of bad news. And nobody wants to let down or disappoint prospective clients.

But I would be doing them a grave disservice if I did not give my honest opinion about whether each person had a claim, a “cause of action”, or not.

Some people take the bad news well, some take it badly.

But one unfortunate feature that I encounter on a too frequent basis is the person who appears to have become obsessive about their issue, no matter what it is.

They simply won’t let it go, even when staring at the uncomfortable facts.

The big problem in this situation is that the biggest sufferer of an unhealthy obsession is the person who has it.

Because it can lead to their well being and mental health being seriously affected.

Not only have they suffered some distress or hardship or rough treatment at the hands of another, but now they run the risk of compounding the damage and hurt by their refusal to put it behind them and let it go.

It is striking, and sad, how some situations become so personal to the individual that they simply cannot see the damage they will do to themselves if they don’t let it go.

In conclusion, sometimes you need to stand up and fight.

But sometimes you need to retreat and live to fight another day, when the odds in your favour shift to make it worthwhile.

And don’t ever fall into the trap of winning a battle, and losing the war.

3 Questions Employers Should Ask Before Engaging the Services of HR/Employment Law Service Providers

hr-services

I’m contacted regularly by a couple of “HR” guys I’ve come to know.

They invariably have a question to ask.

And a lot of the time, more than one.

They say that they just want to “pick your brains”. This is said to flatter me. And persuade me to overlook the fact that what they are really looking for is free advice.

The scary thing is that both of these guys have a lot of clients in the SME/small business sector. And some of their questions betray an appalling lack of knowledge in areas that they are supposed to be “expert” in.

They can probably acquire new clients in the SME sector because they are good salespersons. But when the crap hits the fan in their clients’ business in relation to employment law, they are on the phone to guys like me.

Because while they have a decent broad general knowledge of employment law, they don’t have the necessary expertise when the going gets really serious.

And when the employer is facing a potentially very expensive claim.

Or claims.

They operate like many others in this space-on a small monthly fee basis. That way, the employer/client doesn’t really feel the cost. But it adds up over a year. And really adds up over a number of years.

Recurring Income Model

Any recurring income model like this is a great way to derive an income for two main reasons:

  1. The apparently small cost. When you divide up a yearly fee into easily digested small chunks like a monthly payment (or even a daily payment) it looks very affordable and
  2. Inertia. Once the HR/employment law provider has the employer signed up the employer comes to accept the monthly deduction, which is small, and is unlikely to cancel it.

So it’s a great business model.

Unfortunately for the employer, lads like me end up picking up the pieces either in advising when a difficulty arises or in providing representation when a claim ends up at the Employment Appeals Tribunal, the Labour Court, or the Civil Courts.

SMEs, small business owners, and employers generally should ask some searching questions at the outset-questions about their qualifications in relation to employment law, if any; about what happens if the employer is given incorrect and costly advice; about insurance for professional negligence and whether the HR expert has any.

The relatively small monthly payment should not mask the potential cost for the employer is (s)he is on the wrong end of a successful employment related claim.

Awards in unfair dismissal or equality related cases can be very high. And when you throw in the cost of getting professional legal advice and representation for these cases it is quickly obvious that not asking some basic questions when obtaining the services of a HR/employment law service, like those outlined above, can be a big mistake.