Contracts and Dismissals
Written Employment Particulars
An employment contract is a contract constituted by the undertaking of one party (the employee) to perform work as instructed by the employer and of the other party (the employer) to provide work for the employee and pay wages. According to section 01 of Terms of Employment (Information) Act 1994, contract of employment is a contract of service or apprenticeship and any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whether the contract is express or implied. If the contract is express, it may be in the oral or written. Thus the above act does not require an employment contract to be in written form. Anyone who works for an employer for a regular wage or salary automatically has a contract of employment whether written or not.
The Terms of Employment (Information) Act provides that an employer must issue its employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. It must include the full name and address of the employer and the employee, place of work, nature of the work, date of commencement, expected duration of employment (for a fixed term contract), wages, terms of salary payment, pay reference period, working hours, terms or conditions relating to paid leave (other than paid sick leave), any terms or conditions relating to incapacity for work due to sickness or injury, any terms or conditions relating to pensions and pension schemes, periods of notice and a reference to any collective agreements which affect the terms of employment.
In line with an amendment in the Terms of Employment (Information) Act in 2018, employers are required to issue a statement of employment terms and conditions within 5 days of the commencement of employment relationship. The statement must include information on employer and employee, employer address, duration of fixed term contract and its expiry date (or contract for temporary employment and its duration), rate and method of wage calculation, and normal daily and weekly working hours.
An employer who, without reasonable cause, fails to provide an employee with a statement of employment terms and conditions, within one month of the date of the commencement of that employee’s employment, is guilty of an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.
The Employment (Miscellaneous Provision) Act 2018 has been enacted to address the precarious employment liabilities. The Act provides that:
- Employers must provide five core term of employment within the initial five days of work;
- Zero-hour contract are restricted
- The Act has defined banded-hours system as “where employees contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours”
The banded system is introduced where employee contract does not reflect the actual working hours
Source: §15, 16, of the Employment (Miscellaneous Provision) Act 2018; §3 of the Terms of Employment (Information) Act
Fixed Term Contracts
Fixed term contracts are permissible under Irish legislature with certain conditions. The legislation also allows hiring fixed term contract workers for tasks of permanent nature. According to Protection of Employees (Fixed Term) Work Act employees cannot remain on a series of fixed-term contracts indefinitely. If an employee whose employment commenced prior to the 14th July 2003 accrues three years of continuous service as a fixed term employee, when that employee’s contract comes up for renewal on or after the 14th July 2003, the employee can only be offered one further fixed-term contract. This renewal on a further fixed-term basis cannot be for more than one year. After this, if the employer wishes the employee to continue, it must be with a contract of indefinite duration. If an employee who commenced employment on a fixed-term basis on or after 14th July 2003 has had two or more fixed term contracts, the combined duration of the contracts shall not exceed four years. After this, if the employer wishes the employee to continue, it must be with a contract of indefinite duration.
After this, if the employer wishes to renew the employee’s contract, it must be an open-ended contract. However, the above above-mentioned rules do not apply when there are objective grounds justifying the renewal of a contract of employment for a fixed term only.
The Unfair Dismissal Acts 1977–2007 also contain a provision aimed at ensuring that successive temporary contracts are not used by the employer in order to avoid that legislation. Where a fixed-term or specified-purpose contract expires and the individual is re-employed within 3 months, the individual is deemed to have continuous service.
After completing a minimum of 6 months of continuous service, an employee, having finished their probationary period, may request more predictable and secure form of working conditions. The employer must provide a written reply with reasons within one month. A worker can make such a request once every 12 months. If a subsequent similar request is made by the same worker with an unchanged situation, an oral reply is permissible.
Source: § 9-10 of the Protection of Employees (Fixed Term) Work Act; 6F of the Terms of Employment (Information) Act 1994
Probation Period
The contract can include a probationary period and can allow for this period to be extended. If an employee is on probation, he or she cannot rely on unfair dismissals legislation unless he or she has more than one year's service; or is dismissed for trade union membership or activity; pregnancy-related matters, parental leave, adoptive leave, carer’s leave, or claiming maternity rights. Rights such as information on matters like terms of employment, holidays and pay slips apply to an employee even while he or she is on probation. Since the Unfair Dismissals Acts 1977-2007 don’t apply to the workers whose duration of probation or training is one year or less and is specified in the contract, we can infer from this provision that maximum duration of a probation period is 12 months. Shorter trial periods are and may be agreed between the parties, but claims under statutory unfair dismissal legislation are not normally possible until after 12 months.
The Regulations specify that probationary periods in the private sector cannot exceed 6 months (12 months for public servants). However, under exceptional circumstances, extensions beyond 6 months are allowed, up to a maximum of 12 months. It should be the exception, not the norm, for organizations to extend probationary periods, and any extension for an individual employee should not surpass an additional 6 months (with a recommendation not to go beyond 11 months), serving the employee's interest and in case of employee’s absence from work.
For employees on fixed-term contracts, the probationary period should align with the contract's duration and job nature. If a fixed term contract is renewed for the same functions, no new probationary period is required. For instance, a one-year fixed-term contract may have a three-month probationary period instead of the typical six months in a permanent contract.
Source: §6D of the Terms of Employment (Information) Act 1994; §9A of the Protection of Employees (Fixed-term Work) Act 2003 amended; www.citizensinformation.ie/en/employment/employment_rights_and_conditions/contracts_of_employment/contract_of_employment.html
Regulations on Employment Security
- Organisation of Working Time Act, No. 20 of 1997, last amended 2003
- Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, S.I. No. 475/1997
