Friday, April 19, 2024

EVERYDAY LAW: Worker has right to be consulted


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Two more rights conferred on employees by the Employment Rights Act 2012 are the right to be consulted before being laid off or placed on short time, and the right to a certificate of employment record where employment has ended.

For the purposes of the act, layoff and short time are defined in Sections 38(2) and 38(3), respectively, which provide:

38(2) “An employee shall be taken to have been laid off for a week where

(a) he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do; but

(b) he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide work of that kind for him.

(3) An employee shall be taken to have been placed on short time for a week if, by reason of a diminution in the work provided for the employee by the employer, being work of a kind which under his contract the employee is employed to do, the remuneration of the employee for the week is less than half a week’s wages.”

Section 38(1) further stipulates that unless there is an agreement to the contrary in a contract of employment, an employer shall not lay off an employee or place him on short time except for one of the reasons set out in the act. Moreover, the employer must comply with certain requirements prescribed in the legislation.

The reasons referred to above are that:

“(a) the employer has temporarily ceased, or intends temporarily to cease, to carry on the business for the purposes of which the employee was employed by him, or has temporarily ceased or intends temporarily to cease, to carry on that business in the place where the employee was so employed;

(b) the requirements of the business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have temporarily ceased or diminished or are expected temporarily to cease or diminish.” (Section 38(4)(a) and (b).

The requirements that are mentioned above relate to consultations with the affected employees or their representatives and the communication to the employee and the trade union, where applicable, of a written statement of the facts that require the employer to lay off the employee or place him on short time.

Where an employer contravenes Section 38(1), an employee may make a complaint to the Employment Rights Tribunal which is empowered, on finding the case of the employee proved, to order the employer to pay the employee a sum that is “fair and just” in the circumstances.

Section 40 grants employees who are made redundant as a result of a fall-off of demand for the goods and services of the business of an employer, a right to priority in recruitment where there has been improvement in business within a period of six months from the first redundancy.

A breach of this right permits the employee to make a complaint before the tribunal which is empowered, where it finds the employee’s complaint to be well founded, to order the employer to pay the employee a sum that is fair and reasonable.

The act also confers a right on the employee, where a contract of employment has ended, to a certificate of employment record giving particulars of the employment and, where the employment was ended by dismissal, a statement of the reasons why he was dismissed.

Section 23 provides that the certificate of employment record shall contain the following:

1. The name and address of the employer;

2. The nature of the employer’s business in which the employee was employed;

3. The period of the employee’s continuous service with the employer; and

4. The capacity in which the employee was employed immediately before the end of the employment;

An employee is also entitled to be provided by his employer with written particulars of the reasons for his dismissal,

1. if the employee is given by the employer notice of termination of his contract of employment,

2. if the employee’s contract of employment is terminated by the employer without notice; or

3. if the employee is employed under a contract for a fixed term and that term expires without being renewed under the same contract.

• Cecil McCarthy is a Queen’s Counsel.


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