Contract Terms II

Health and Safety

Health, safety and welfare at work legislation require a safety statement. The safety statement should be made available to employees at the commencement of employment.  The statement must, amongst other things, set out the rights and responsibilities of the employers and employees in relation to occupational safety and welfare.  It should identify the risks that arise in that workplace, and provide for the steps which are to be taken to manage and minimise those risks.

There may be a policy on workplace, bullying, stress and harassment.The Health and Safety Authority has published a Code of Practice in relation to workplace bullying.There is also a Code of Practice in relation to sexual and other harassment at work  It provides for procedures to deal with alleged incidents of bullying.

Health Safety and Welfare legislation and common law duties of employers’ liability imply a range of terms into a contract of employment in relation to occupational health and safety. They cover not only the employer’s duty but also an employee’s duty to conduct himself with reasonable care and attention.


Equality

Equality legislation makes it an implied term of the employment contract that there be equal pay and equal treatment for persons in comparable positions.  A workplace equality policy may elaborate on these provisions.  It may set out the employer’s commitment that there should be no discrimination on the relevant statutory or other specified grounds.

The Employment Equality Act and Disability Act place obligations on employers to consider adjustments and steps to accommodate employees and others with disabilities, where this does not involve significant cost.  There may be a disability policy, for employees with disabilities.


Intellectual Property

An employer may develop intellectual property in the course of employment. The Patents, and Copyright legislation presumes that inventions and works in the course made in the course of employment, belong to the employer. The legislation does not protect intellectual property which does not qualify as a patent or copyright.

The employment contract will usually set out the types of works and inventions made in the course of employment, which  belong to the employer. It may be defined expansively to include all patents, trade marks, service markets, registered designs, drawings, utility models, design rights, inventions, discoveries, ideas, methods, techniques, copyright (including the copyright in software in any code), database rights, trade secrets and other confidential information, technical information, business ideas, concepts, know-how, business or trade names and goodwill whether registered or not, or capable or registration.

There may be obligations to notify intellectual property developed, deliver material and specifically assign it if required. There may be obligations to furnish all relevant material relating to the intellectual property.


Information Technology

The employer should have an Internet Policy in relation to internet use and workplace IT.  It should provide that the primary responsibility rests on employees, in relation to internet use.  The use of IT should not compromise the employer, customers or other employees.   Breach of the policy may have disciplinary consequences.

There should be provision against offensive or inflammatory emails or pictures etc., being circulated internally or externally. Incoming mail of this type should be required to be unopened and deleted.

There should be a policy on the use of e-mail and the internet. It should be furnished in writing and provide for the information which can be sent and received.  There may, for example, be provisions prohibiting joining of internet chat rooms, access to inappropriate sites, playing of games and the misuse of intellectual property.

Internet access and use may be restricted.  Downloading inappropriate pornographic material may be expressly prohibited.  Downloading anything which may jeopardise the security of the system, including virus downloading should be prevented in order to prevent hacking and security compromises and to avoid the infiltration of viruses.


Data Protection

IT security is required from a general liability, data protection compliance and reputational perspective.  Data protection, cyber security and the physical security measures will be required. Personal computers and other mobile IT equipment may be provided, which require enhanced security. The employer may retain the right to inspect in order to verify the security arrangements.

If the employee has a telephone or and/or a laptop, he or she should be obliged to take due care of it.  Data protection obligations are potentially onerous.  The employer remains liable for breach of data protection legislation which occur off site in the employee’s homes and elsewhere. The employer may incur civil and criminal liability to third parties for misuse.

There should be a policy on the use of e-mail and the internet. It should be furnished in writing and provide for the information which can be sent and received.  There may, for example, be provisions prohibiting joining of internet chat rooms, access to inappropriate sites, playing of games and the misuse of intellectual property.

Password protection is essential.  There should be procedures for the handover of the password in the employee’s absence or after termination of employment. Laptops should be encrypted.


Privacy

The employer may reserve a right to search the employee.  This may be necessary, having regard to the nature of the business.  Express consent is required.  This may be provided for in the contract of employment. There must be an objective necessity for the search.  The presence of a third-party may be necessary or appropriate in certain cases.

Data protection considerations arise in the context of obtaining and handling employee information.  Data must be fairly obtained and fairly processed.  Employees as data subjects usually have the right of access to personal data held in relation to them. Employers who maintain personnel records must consider their data protection issues and obligations.

An employee must know the reasons why information is sought and needed, how it will be kept and how it will be used. The data must not be used or disclosed in a manner incompatible with the relevant purpose. It must be up to date, adequate and must not be excessive.  It must be proportionate and contain no more than is relevant. Certain data may be sensitive personal data.  This requires very explicit consent to use and processing.


Monitoring Employees

Generally, the employer should have the right to monitor unauthorised use of the IT system, as it may incur liability from misuse. An internet policy is likely to provide that the use of all internet and workplace IT, is not confidential and is open to monitoring by the employer.

Staff monitoring raises issues of privacy and data protection.  Monitoiring should be clearly disclosed to the employees. An employer should have a policy in relation to Internet and telephone use in the workplace. The policy should state whether use by employees is monitored. Monitoring and surveillance of employees must be proportionate to the relevant risks.  It must take account of the employee’s legitimate right to privacy.

There should be a policy on the use of e-mail and the internet. It should be furnished in writing and provide for the information which can be sent and received.  There may, for example, be provisions prohibiting joining of internet chat rooms, access to inappropriate sites, playing of games and the misuse of intellectual property.


Trade Union

It may be a condition of employment, that the employee be a member of the trade union or another body which is recognised by the employer for negotiation purposes.  There may be provision for a contribution to the union funds, by way of deductions from pay.

A strict “closed shop” policy, is inconsistent with the constitutional right not to associate.  The deduction of union dues must be agreed.


Family

The policy on maternity, parental leave, carer’s leave, adoptive leave and force majeure leave should be provided for.  Employers must afford the rights under the legislation, at a minimum.  Some employers may be in a position to offer more flexible working arrangements and career breaks, in order to facilitate the rearing of children.


Absence

There may be a policy on absence and sickness. Notification of absence should be required to an immediate manager or supervisor, where possible, at least a certain time before the time for commencement of work.  The reason / type of illness and expected duration should be communicated.

There may be provision for certified and uncertified days of absence.  A specified number of uncertified days may be permissible, and thereafter, a medical certificate may be required.

There may be a policy on absenteeism.  In the case of prolonged absence, the employer may reserve the right to require the employee to undergo medical tests and other assessment, in order to assess his capability for work and the likely return date, if any.

Salary may be paid during absence on a discretionary basis.  This may be subject to compliance with procedures. There may be a formal sick pay scheme.  There may be access to a permanent health insurance policy after a certain period, or it may be introduced on a phased basis. There are social welfare benefits for disability or sickness and injury.  Entitlement depends on social insurance contributions.


Sick Pay

The misuse of any of a discretionary continuation of pay or a sick scheme is likely to be a serious disciplinary breach.

If the employee has a personal injury claim against a third party, he may be required to reimburse some parts of the payments, after the matter has been settled, or has been the subject of a court award of compensation. The scheme may require that the employee takes legal action that is open to him against third parties, as a condition of the receipt of benefits.


Grievance

There should be a grievance and disciplinary procedure.  Its terms will depend on the scale and nature of the employer’s organisation activities. It may provide for the escalation of unresolved disputes from the immediate superior/supervisor to higher levels of management. The employee should be entitled to be represented by a union official or colleague. There may be provision for reference to the conciliation services within the Workplace Relations Commission.

Sanctions may range from a warning to suspension and dismissal. The disciplinary procedures typically provide for verbal warnings, written warnings and ultimately, a final warning.  There should be provision for the recording of warnings in the employee’s records.  There may be provision for suspension with or without pay while the matter is being investigated.

There is a non-binding Code of Practice on Grievance Procedures under the Industrial Relations Act.  It sets out guidelines for the appropriate procedures.

The Unfair Dismissal Act effectively requires fair procedures in relation to incidents or other matters which could lead to dismissal.  The disciplinary procedure may be agreed with representatives or trade unions.

The procedure should be published and notified by the employer.  Copies of the procedure must be given to the employee within 28 days of commencement of the employment.  If it is varied, copies of the variation must be given to the employee.  The failure to comply with the procedure is a significant factor in a finding of unfair dismissal.

There may be a range of disciplinary sanctions short of dismissal.  This should be provided for by the relevant procedures.  Generally, there should be warnings and the opportunity to make representations before significant sanctions are applied.


Dismissal

The grounds for dismissal should be clearly defined.  They should reflect the basic competence, capability and conduct grounds permitted under unfair dismissals legislation.  Serious breaches of the relevant grounds are a basis for dismissal, e.g.  serious misconduct, absenteeism, prolonged poor performance, poor timekeeping, etc.

Gross misconduct may justify immediate dismissal.  However, fair procedures should be followed, even in cases which are apparently “open and shut”.  See generally the sections on unfair dismissal.

Redundancy procedures may be provided for in collective agreements.  There may be a policy in relation to prior consultation and selection for redundancy, where circumstances of redundancy arise.  There may be a policy such as “last in, first out” or ranking based on skills and seniority.

Contracts of employment should provide for notice periods for termination, of employment on the part of the employer and of the employee.  Minimum notice periods are provided by law.


Confidentiality

The employment contract may provide for obligations of confidentiality.  Confidentiality obligations typically protect intellectual property and goodwill. They may extend beyond the termination of employment.

Confidentiality obligations may be particularly appropriate, necessary and need careful definition, in certain occupations and contexts In the digital age, significant information of value can be readily taken by  departing employee.

In the absence of a contractual term, the scope and application of the default common law position is debatable.  Provided that the clause is clear and  protects genuine proprietary information, it will usually be enforceable by injunction and other remedies.


Post Terminations Restrictions

Confidentiality obligations may extend beyond the termination of employment. Post-employment restrictive covenants may serve to protect the employer’s confidentiality, trade and business connection.They may be accompanied by restrictions on competing, soliciting employees and dealing with former customers for a period after cessation of employment.

Contracts sometimes provide that an employee may not take up employment in breach of a restrictive covenant for a period until a so-called “gardening leave” period has expired.  He is precluded from taking up employment with a third-party during that period. The employer is not obliged to provide work for the employee in the period, although he must usually be paid.

Provided that it is reasonable, an injunction may issue to prevent a breach of an obligation not to work for another.  In general, courts are more willing to enforce restrictive clauses with gardening leave provisions, than clauses without provision for payment.


Arbitration

An employment contract or certain issues under it may be made the subject of arbitration, in the event of a dispute. Industrial relations type arbitration is excluded from the Arbitration Act but may be the subject of a reference to (generally) non-binding procedures under the auspices of the Workplace Relations Commission.

Many public-sector employments are subject to statutory arbitration schemes which cover both disputes and the evolution and agreement of working terms and conditions.

A registered employment agreement may become part of the terms of employment and may be interpreted by the Labour Court.

The applicable law will generally be that of the home State.


Signature

The employment contract will generally be signed by the employer, returned by the employee and returned to the employer.  It may be in the form of a letter with an acceptance clause. Alternatively, it may be in the style of a legal agreement.


References and Sources

Primary References

Employment Law  Meenan  2014

Employment Law Supplement            Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law   Daly & Doherty           2010

Employment Law Contracts (Book & CD-ROM)       Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

Shorter Guides

Employment Law Nutshell      Donovan, D     2016

Employees: Know Your Rights           Eardly  2008

Essentials of Irish Labour Law           Faulkner          2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

ealth and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball et al 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by: Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by: Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016