1. Daniel Spring & Co. IDHA Annual Conference
An Overview of Irish Employment Law
Paula Murphy, Solicitor
Saturday 2 November 2013

2. IRISH DENTAL HYGIENIST ASSOCIATION CONFERENCE 2ND NOVEMBER 2013
EMPLOYEE
-v-
INDEPENDENT CONTRACTOR

3. WHY DOES IT MATTER? Employer vicariously liable for acts of employee
Duties implied by common law into the contractual relationship
Employee entitlements under statute
Employee’s preferential creditors in winding up/receivership
Revenue implications for employee/employer

4. HOW DO WE IDENTIFY AN EMPLOYEE?
Mutuality of Obligation test
Control test
Integration test

5. CONTROL TEST
“…the fact of the Master’s right to direct the servant not merely as to what is to be done but how it is to be done…” Roche –v- Kelly (1969) Walsh J.

6. INTEGRATION TEST
“Under a Contract for Service a man is employed as part of the business, whereas under a Contract for Services his work, although done for the business, is not integrated into it but only accessory to it”.

7. MUTUALITY OF OBLIGATIONS
“a continuing obligation on the employer to provide work and pay and a continuing obligation on the employee to do the work provided …”
Re Nethermere (St. Noets) Ltd –v- Taverna & Gardiner 1984 IRLR 240

8. OTHER CONSIDERATIONS Written contract/intention of the parties
The Revenue situation
Does the worker work for multiple employers?

9. CONTRACT OF EMPLOYMENT
Written Intention of the Parties -v- Practice on the Ground

10. Henry Denny & Sons (Ireland) Limited –v- Minister for Social Welfare [1998] I. IR 34 Castleisland Cattle Breeding Society –v- Minister for Social and Family Affairs [2004] IESC 40 Byrne –v- Securispeed UD 451/2001

11. “in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature”. Geoghan J – Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs [2004] IESC 40.

12. REVENUE SITUATIONS? Not conclusive
However regard will be had to it particularly if the employee operated in that capacity for a number of years.

13. MULTIPLE EMPLOYERS Ryan –v- Shamrock Marine (Shannon) Ltd (1990) EAT
Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs [2004] IESC 40.

14. EMPLOYMENT STATUS GROUP REPORT/CODE OR PRACTICE
Is there a Mutuality of Obligation?
YES NO
Consider: Not an Employee
Control
Title
Revenue Situation
Ownership of material
Insurance etc.

15. IMPLICATIONS OF BEING AN EMPLOYEE
Good or Bad?

16. INDEPENDENT CONTRACTOR
Freedom of Association
More control over finances
At the will of the employer
Limited statutory protections

17. EMPLOYEE – RELEVANT EMPLOYMENT STATUTES
Terms of Employment (Information) Acts 1994 to 2001
Unfair Dismissals Acts 1977 to 2007
Redundancy Payments Acts 1967 to 2007
Employment Equality Acts 1998 to 2007
Protection of Employment Acts 1977 to 2007
Payment of Wages Act 1991
Minimum Wage Act 2000
Industrial Relations Act 1946 to 2004
Maternity Protection Acts 1994 to 2004
Employees (Provision of Information and Consultation) Act 2006
Adoptive Leave Acts 1995 and 2005
Parental Leave Acts 1998 and 2006
Transfer of Undertakings Regulations
Carer’s Leave Act 2001
Organisation of Working Time Act 1997
Protection of Employees (Part-Time Work) Act 2001
Protection of Employees (Fixed-Term Work) Act 2003
Minimum Notice and Terms of Employment Acts 1973 to 2001

18. PAYMENT OF WAGES ACT 1991 Readily encashable mode of payment
Written statements of wages, contributions and deductions
Protection against unlawful deduction of wages

19. PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003
Equal treatment to permanent employees, with respect to conditions of employees
Prevents abuse arising from the use of successive fixed term/fixed purpose contracts

20. MINIMUM NOTICE OF TERMS OF EMPLOYMENT ACTS 1973 to 2001
13 weeks to 2 years’ service 1 weeks’ notice
2 to 5 years’ service 2 weeks’ notice
5 to 10 years’ service 4 weeks’ notice
10 to 15 years’ service 6 weeks’ notice
15 or more years’ service 8 weeks’ notice

21. UNFAIR DISMISSALS ACT 1977 TO 2007 (THE “UDA”)
Every dismissal is presumed to be unfair
Burden of proof is on the employer to prove the dismissal is fair
Employee entitlements after 12 months employment (unless one of specified exemptions)

22. DEFENCES UNDER UNFAIR DISMISSALS ACT
Conduct
Competency
Redundancy
Other good reason

23. REMEDIES UNDER UNFAIR DISMISSALS ACT
Reinstatement
Re-engagement
Compensation

24. REDUNDANCY PAYMENTS ACTS 1967 TO 2007
Compensation for loss of service
Minimum statutory amount 2 weeks per year of service PLUS 1 week remuneration
€600 standard ceiling for a weekly earning
Entitlements arise after 2 years employment

25. “TUPE”
Protect an employee’s statutory and contractual rights in the event that a business or part of a business is transferred
Obligation on employers to inform and consult with employees in the event of a proposed transfer

26. ORGANISATION OF WORKING TIME ACT 1991
Daily rest periods
Minimum holiday period
Maximum working hours

27. QUESTIONS