Last month the Employment Rights Act, 2012 came into operation, ushering in a new regime with respect to rights of employed persons.
The act makes some fundamental changes in the relations between employers and employees. The main object of the act is to confer new employment rights on employees. The main rights conferred on employees are the following:
1. the right, at the commencement of employment, to a written statement of particulars of the employment;
2. the right, whenever salary or wages are paid, to a written statement of particulars of the payment;
3. the right to be consulted before being laid off or placed on short time;
4. the right, if dismissed for redundancy, to priority on a rehiring in certain circumstances;
5. the right, where employment has ended, to a certificate giving particulars of the employment, including where the employment ended by dismissal (should the employee so wish), a statement of the reasons why he was dismissed; and
6. the right not to be unfairly dismissed.
The Act establishes a tribunal called the Employment Rights Tribunal for the determination of issues relating to the new rights, but provides that complaints must first be referred to the Chief Labour Officer for an opportunity for a settlement to be reached by conciliation.
If a settlement is not reached, the tribunal is given wide powers, subject to an appeal to the Court of Appeal on questions of law, to determine complaints. These powers include, in appropriate cases, power to award compensation and power to order reinstatement or re-engagement of an unfairly dismissed employee.
It should be emphasized that the act and rights conferred under it apply to employees, namely persons who work under a contract of service or apprenticeship. They do not apply to persons who work under a contract for services. Put another way, the act confers rights on employees and not self-employed persons or independent contractors.
The first schedule of the act contains a description of the factors that must be considered in determining in any particular case whether a contract of employment exists.
Those factors are whether –
“(a) there is an obligation on the part of the employee to give personal and exclusive service;
(a) the work is done according to the instructions of the employer, and the manner in which the work is carried out is subject to the control and direction of the employer;
(b) the work has continuity, and such continuity creates for the employee an economic dependence upon the employer, without there being any financial risk to the employee;
(c) the work is carried out within fixed hours or at a workplace or workplace specified or agreed by the employer;
(d) the work involves the integration of the employee in the organiation of the business, including his subjection to its policies;
(e) the employee is subject to the procedures of the business for addressing grievances and disciplinary matters;
(f) the employee is in receipt of periodic remuneration payable on a stipulated basis, for example, at hourly, weekly or monthly intervals, and all such payments are subject to statutory deductions;
(g) the employee is entitled to holidays with pay; and
(h) the employee makes no, or only nominal, investment in tools and equipment”.
Note: This list is not exhaustive and the factors outlined are all elements in a balancing exercise to determine the nature of the contract. No one factor, therefore, is by itself conclusive, and the weight to be attached to any one of the factors is a matter for adjudication.
Next week, I shall begin to consider the rights created by the act.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]
