Legal Rights

Tuesday, February 18, 2014

Some Frequently Asked Legal Questions:

What information must my employer give to me when I start a new job?
There is a statutory obligation on an employer to serve written particulars of employment not later than two months after the commencement of employment by the employee.

The written statement, which is not, of itself, a contract must include particulars of the terms of employment relating to the name and address of the employer, the place of work, job title/nature of the work, date of commencement of employment, the expected duration of contract (if temporary contract) or the date on which the contract will expire (if fixed term contract), rate or method of calculation of pay, pay intervals, hours of work (including overtime), statutory rest period and rest break entitlements, paid leave, incapacity for work due to sickness or injury, pensions and pension schemes, notice entitlements and collective agreements.

The statement must also indicate the pay reference period for the purposes of the National Minimum Wage Act 2000. Furthermore, the statement of terms must inform the employee that he/she is entitled to ask for a statement of his/her average hourly rate of pay for any pay reference period falling within the previous 12 months as provided for in section 23 of the National Minimum Wage Act 2000. Employers are also obliged to furnish their employees with a written procedure dealing with Grievance and Disciplinary issues and should also furnish a Bullying and Harassment Policy; Communications Policy to include email and internet access and a Health and Safety Statement.

Can my employer make a change or variation to my Contract?
An employer is also required to notify an employee of any changes to the particulars contained in the written statement within 1 month after the change takes effect. Any changes must occur by agreement. Any change or variation cannot be unilateral. Where an employee is required to work outside the State for a period of not less than 1 month, the employer is obliged to add certain particulars to the written statement and to provide the statement prior to the employee's departure.

What obligations or duty does my employer owe to me or what obligations or duty do I owe to my employer?
The most obvious source of the obligations of each party is the written statement/contract of employment. There are also certain implied terms on the part of the employer or employee which are of general application. For example, the employer is obliged not to destroy the relationship, mutual trust and confidence between employer and employee, and to provide the employee with a safe system of work and safe equipment with which to work.

The Employee is obliged to act in good faith; to be obedient to the employer; not to disclose confidential information and to work with due care and diligence.

Terms can also be incorporated into a contract of employment by Collective Agreements and by “custom and practice” in the particular industry/organisation.

What notice period am I entitled to before my employment is terminated?
The Minimum Notice Acts 1973 1991 provide for a minimum periods of notice. This applies to employees who have been in continuous service of the Employer for 13 weeks or more. For example, an employee who has been working with the employer for between two and five years is entitled to minimum notice of two weeks. If the Contract specifies a longer period then the longer period of notice prevails. An employee who is resigning from their employment is obliged to give one week’s notice unless their contract of employment specifies a longer notice period.

What is unfair dismissal?
This is the statutory remedy available to employees who feel they have been unfairly dismissed from their employment. The claim is brought to the Employment Appeals Tribunal under the Unfair Dismissals legislation. An employee must have one year’s continuous service with the employer before he/she will be covered by the legislation unless the employee meets one of the exceptions under this heading.

What is wrongful dismissal?
This is the common law remedy available to employees who allege that their Contract of Employment has been breached by the Employer. The claim is brought to the High Court or the Circuit Court, depending on the value of the claim. The Courts hold the view that a contract of employment can be terminated for any reason or for no reason, provided that adequate notice of termination is given. An employee does not require any qualifying period of service with the employer in order to be entitled to bring a claim for wrongful dismissal.

Can I bring a claim for both Unfair and Wrongful Dismissal?
No. A person can either bring a claim for Unfair Dismissal or Wrongful Dismissal and must choose which claim they will bring. Employees should always seek legal advice on which option is more appropriate in their particular circumstances.

Is there a time limit for bringing an Unfair Dismissals or Wrongful Dismissal Claim?
Yes, for an Unfair Dismissal claim, a claimant must give notice in writing to the Rights Commissioner or the EAT within 6 months from the date of dismissal (or 12 months in “exceptional circumstances”). An employee has six years bring a claim for wrongful dismissal.

What are my maternity rights?
The Maternity Protection legislation provides for a statutory minimum period of maternity leave of 18 weeks paid leave (either paid by the employer or by Social Welfare) and a further 8 week’s unpaid leave, if the employee opts to take it. Two weeks must be taken prior to the expected delivery date. The employee is entitled to return to work following maternity leave either to the same job or to a suitable alternative job. An employee must inform his/her employer of her intention to return to work at least four weeks before the proposed date of return. There is no legal obligation on the employer to pay an employee when she is on maternity leave.

What are my rights under the Parental Leave Act, 1998?
This entitles a natural or adopted parent of a child to a period of 14 working weeks parental leave to enable him/her to take care of the child. This leave is unpaid and there are various restrictions and conditions.

What are my rights in relation to discrimination?
The Employment Equality Act, 1998 as amended by the Equality Act, 2004, prohibits discrimination in employment on nine rounds. The legislation also prohibits harassment, sexual harassment and victimisation.

 

What are my holiday entitlements?
The Organisation of Working Time Act, 1997 provides for paid annual leave of four weeks which does not include public holidays, provided an employee has worked for the required number of hours in the year. Employees who work less than the required number of hours per annum are entitled to annual leave on a pro rata basis.

Disclaimer :The answers to the above questions are for general interest and guidance only. Under no circumstances should any of the information contained therein be acted upon without first obtaining legal advice.