Redundancy Exceptions
Redundancy Payment Exceptions
The Redundancy Payments legislation does not apply to employment, where the employer is father, mother, grandmother, grandfather, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the employee, where the employee is a member of the employee’s household and the employment is related to a private dwelling or a farm in or on which both the employer and the employee reside.
An employee is deemed to be dismissed if the employee terminates the contract under which he is employed in circumstances such that he is entitled to terminate by reason of the employer’s conduct. Conversely, there is no dismissal, if the employee’s contract of employment terminates by reason of his gross misconduct. In effect he is not dismissed by his employer in this case.
Where an employee who has been serving a period of apprenticeship training with an employer is dismissed within one month of the end of that period, the employee shall not, by reason of that dismissal, be entitled to redundancy payment.
No Redundancy Payment for Strike
The legislation does not apply to a cessation of employment in consequence of a strike or lockout. A lock-out is the closing of a place of employment, the suspension of work or the refusal by an employer to continue to employ any number of persons employed, in consequence of a dispute, done with a view to compelling the persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment.
A strike is the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute. It must be done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment.
Fixed Term / Re-engagement
A fixed term or fixed purpose employee is deemed to be dismissed at the end of the relevant period, only if the contract under which he is employed is terminated by the employer (with or without notice) where the purpose was of such a kind that the duration of the contract was limited but was, at the time of making, incapable of precise ascertainment, the term expires and that the purpose ceases without being renewed under the same or a similar contract.
An employee is not be taken to be dismissed by his employer if his contract of employment is renewed or he is re-engaged by the same employer under a new contract of employment, where the provisions of the contract as renewed or of the new contract as to capacity and place in which he was employed and as to the other terms of employment, do not differ from the corresponding provisions of the previous contract and the renewal or re-engagement takes effect immediately on the ending of the employment under the previous contract.
Change of Ownership I
Where there is a change in the ownership of a business for the purpose of which a person is employed, or of a part of such business, and in connection with that change, a person by whom the employee is employed before the change terminates the employment, the following provisions apply.
- if by agreement with the employee, the immediate successor as owner, renews the employee’s contract of employment or re-engages him under a new contract, the provisions in relation to renewal or re-engagement are to have effect as if there had been a renewal or reengagement by the previous owner;
- if the new owner offers to renew the employee’s contract of employment or re-engage him under a new contract, but the employee refuses an offer, it takes effect, as if it were an offer and refusal with the previous employer.
The offer shall not be treated as one by which the provisions of the contract as renewed, would differ from the corresponding previous provisions, by reason only that the new owner is substituted for the old owner. No account shall be taken of that substitution in determining whether the refusal of the offer was unreasonable.
Change of Ownership II
The provisions have effect provided that previous owner and new owner are wholly different. They do not apply where the person by whom the business (or part of the business) is owned immediately before the change, is one of the persons by whom it is owned immediately after the change. This may be as partner, trustee or otherwise. It is enough that the successor includes one or more of the persons by whom it was owned prior to the change
A successor business owner, may not deny that the employee is in continuous employment unless, within 26 weeks of the change of ownership, he notifies the employee of his intention so to deny.
On the death of an employer, the employee is treated as having been dismissed shall not be entitled to a redundancy payment, if the personal representative offers to employ or re-engage him within eight weeks of death, provided that the provisions of the contract as renewed or the new contract, do not differ to the prior contract or where they do differ, the offer constitutes an offer of suitable employment in relation to the employee, which he has unreasonably refused.
Change of Employer
Where persons were employed by a more than one employer in any week or work under the general control and management of some person, other than their immediate employer, Minster may make regulations, treating them as the employer. Regulations may provide for the adjustment of rights between various employer parties. A number of such regulations have been made.
An employee is not be taken to be dismissed by his employer in any other case, if the renewal or reengagement is pursuant to an offer made by the employer before the ending of his employment under the previous contract and takes effect immediately on the ending of that employment or after a period of not more than four weeks.
Deemed to be No Temination of Employment
An employee is not to be taken as dismissed if
- he is re-engaged by another employer immediately on termination of his previous employment;
- the re-engagement takes place with the agreement of the employee, the previous employer and the new employer;
- before commencement of the period of employment with the new employer, the employee receives a statement in writing on behalf of the previous employer and the new employer which sets out the terms and conditions of employment with the new employer, which specifies that the employee’s period of service with the previous employer will, for the purposes of the Act, be regarded by the new employer as service with the new employer;
- it contains particulars of the service mentioned above; and
- the employee notifies in writing the new employer that he accepts the statement.
Re-engagement
Where under the above provision, an employee is re-engaged with a new employer, service with the previous employer is deemed to be service with the new employer for the purpose of its duration and continuity.
In the case of a contract under which employment ends on a Friday, Saturday or Sunday, the renewal or re-engagement is deemed to take effect immediately if it takes place on or before the next Monday after that Friday, Saturday or Sunday and the interval of four weeks mentioned above is calculated as if it had ended on that Monday.
Where an employee terminates his contract of employment without notice, because he is entitled to do so by reason of a lock-out, the above provisions regarding the employee terminating his contract due to the employer’s conduct shall not apply to that termination.
Where an employee is treated as not having been dismissed by reason of renewal or engagement taking effect after an interval, in determining whether he has continuous employment, the period of the interval is to count as a period of employment.
Continuity
No variation of a contract of employment by agreement between the parties constitutes a termination of that contract by itself.
Where by any rule of law, an act on the part of the employer or any event affecting the employer, including his death (in the case of an individual), operates to terminate the employment contract, there is deemed to be no termination of the contract by the employer unless it would otherwise constitute a termination of the contract by him.
Where in the above cases (other than on death) the employee’s contract is not renewed or if he is not re-engaged under a new contract, he shall be deemed to be dismissed for redundancy purposes. In this context, redundancy by reason of an employer ceasing or intending to cease carrying out business are judged as if the successor was the employer. The termination of the former employer’s business in itself is insufficient for redundancy where it is continued by a successor.
Unfair Redundancy
An employee is deemed not to be dismissed by reason of redundancy if
- the dismissal is one of a number of dismissals that, together, constitute collective redundancies under the Protection of Employment Act;
- the dismissals concerned were effected on a compulsory basis;
- the dismissed employees were or are to be replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by other persons who are directly employed by the employer or other persons whose services are or are to be provided to that employer in pursuance of other arrangements;
- those other persons perform or are to perform essentially the same functions as the dismissed employees and the terms; and
- the terms conditions of employment those other employees are or are to be materially inferior to those of the dismissed employees.
Accordingly, the termination of employment cannot be justified on the basis of redundancy and there may be an unfair dismissal
References and Sources
Primary References
Employment Law Meenan 2014 Ch. 21
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.15 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.22
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
Legislation
Redundancy Payments Act 1967 (21/1967)
Redundancy Payments Act 1971 (20/1971)
Redundancy Payments Act 1973 (11/1973) (not amended)
Redundancy Payments Act 1979 (7/1979)
Protection of Employees (Employer’s Insolvency) Act 1984 (21/1984), s. 12
Social Welfare Act 1990 (5/1990), ss. 26, 27 and 29
Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),
Social Welfare Act 1991 (7/1991), s. 39 other than subs. (2)
Protection of Employees (Part-Time Work) Act 2001 (45/2001), in so far as it relates to the Redundancy Payments Acts 1967 to 1990
Redundancy Payments Act 2003 (14/2003)
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007),
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
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
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/
Health 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
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