Short Time / Lay Off

Seasonal /Short Hours I

The general principle is that if an employee (or other person who qualifies), who has been employed for the requisite period, is dismissed by his employer by reason of redundancy, is laid off or kept on short-time for a certain period, he is entitled to a redundancy payment.

The period for qualification for a redundancy payment is 104 continuous weeks’ employment of the employee, by the employer who has dismissed him, laid off and kept him on short-time.  This excludes periods of employment before the person had attained the age of 16.

Where an employee has been dismissed by reason of redundancy or has been laid off, during the period of four years immediately preceding the date of dismissal or has been laid off for an average annual period of more than twelve weeks, the following applies.


Seasonal / Short Hours II

The employee shall not become entitled to a redundancy payment by reason of dismissal or lay-off until a period equal to the average annual period of lay-off over the above-mentioned four years has elapsed after the dismissal or lay-off.

If before the termination of the period required to elapse above, the employee resumes work with the employer, the employee shall not be entitled to a redundancy payment in relation to the dismissal or lay-off.

If before the termination of the period required above, the employer offers to re-employ that person and the employee unreasonably refuses the offer, he shall not be entitled to a redundancy payment in respect of that dismissal or lay-off.

In the above circumstances, the period of four weeks or the period of 13 weeks referred to below shall not commence until the expiration of the period equal to the appropriate average annual period of lay-off.


Contract Issues I

Short-time work will generally involve the termination of the employment contract and the offer and acceptance of differing terms.  Notice is required to terminate the employment contract, in the absence of a clause in the contract which allows for short time work. The contract may allow short time work by implication or by custom and practice in the workplace or industry. Redundancy and unfair dismissal issues arise, even if the contract is lawfully terminated.

What would otherwise be an unfair dismissal, may be justified on the grounds of redundancy.

In many cases of lay-off, it may be possible to justify termination of the existing contract on the ground of redundancy. If the proposal breaches the employment contract, a civil claim for damages may be made. Damages that would be available in a civil case would be nominal unless the contract provided for a long notice period or made provision for specific compensation for breach.


Contract Issues II

Exceptionally, there may be contractual right (expressly, by implication or custom) to require short time work or to lay-off, an employee temporarily without remuneration, without there being a dismissal. Lay-off and short time working may arise by custom in certain industries.  It may be incorporated expressly into the contract or by implication.

The short time working or lay-off should be for a reasonable time for this purpose. What this is, depends on the circumstances.  If the duration becomes unreasonable, there may be constructive dismissal. An employee who claims and receives a redundancy payment for lay-off or short-time work is deemed to have voluntarily left employment for the purpose of notice and minimum notice.


Redundancy Payment

A redundancy payment entitlement may arise where there is prolonged short time working or  a prolonged lay-off while the employer cannot provide work due to a shortage of work, because of circumstances beyond its control.  An employee who, reasonably, does not accept changed terms of employment, may be entitled to a redundancy payment.

An employee who becomes entitled to a redundancy payment where there is a lay off or short-time work, is entitled to be paid the redundancy lump sum set out in the legislation.

Where the employee gives notice of intention to claim a redundancy payment by reason of a lay-off or short-time, his employer shall issue a redundancy certificate, not less than seven days after service of the notice.  Failure to furnish a redundancy certificate so is an offence subject to the same level of fine as above.   The certificate is in a prescribed form.

An employee is not entitled to a redundancy payment by reason of having been laid off or kept on short-time unless the below conditions apply.

  • where the employee has been laid off or kept on short time for four or more consecutive weeks or within 13 weeks for a series of six or more weeks, of which more than three weeks were consecutive; and
  • within four weeks after the expiry of the period of lay-off or short time, the employee gives the employer a notice in writing with his intention to claim the redundancy payment in respect of the lay-off or short time or gives the notice to terminate his contract.

Counter-notice

If the employee gives notice of an intention to claim, the employer may give a counter-notice within seven days of his intention to contest liability to pay the redundancy payment.  The employer is entitled to refuse a redundancy payment if on the date of service of notice, the employer reasonably expects that within the four weeks the employee (if he continued employment) would enter upon a period of employment of not less than 13 weeks during which time he would not be laid off or put in short period.

If the employee gives notice, the employer serves counter notice, and the employee continues during the next four weeks to be employed by the same employer, and the employee has been laid off or kept on short time for each of those weeks, it is deemed for the above purpose, that the employee will not enter into a period of continuous employment of at least 13 weeks’ duration.


Lay Off I

Where an employee’s employment ceases by reason of the employer being unable to provide work for which he was employed to do, and it is reasonable in the circumstances for that employer to believe that the cessation will not be permanent, and the employer gives notice to that effect to the employee prior to cessation, the cessation is regarded as a layoff under the Redundancy Payments Act.

Where for any week, an employee’s remuneration is less than one-half of his normal remuneration or his hours are reduced to less than one-half of his normal hours, the reduction in remuneration or hours is caused by a reduction either in the work provided for the employee by the employer or in other work of a kind under which his contract the employee is employed to do, it is reasonable in the circumstances for the employer to believe that the reduction in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration, the employee shall be taken to be on short-time for that week.


Lay Off II

An employee shall not be entitled to a redundancy payment by reason of having been laid off or kept on short-time unless

  • he has been laid off or kept on short-time for four or more consecutive weeks, or within a period of 13 weeks, for a period of six or more weeks of which not more than three were consecutive; and
  •  after the expiry of the period of lay-off or short-time, and not later than four weeks after the cessation of lay-off or short-time, he gives to his employer notice in writing of his intention to claim redundancy payment in respect of the lay-off or short-time.

Within four weeks after the expiry of the lay-off or short-time periods mentioned above, an employee may, in lieu of giving an employer a notice of his intention to claim a redundancy payment, terminate his contract either by giving him the notice required or if none is required, by giving him not less than one week’s notice of his intention to terminate the contract and the notice so given is  deemed to be notice of intention to claim, in writing on the date on which the notice was actually given.


Counter Notice

Subject to below, an employee is not entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service, it was reasonable to expect that the employee, if he continued would within four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time.  This does not apply unless, within seven days after the service of notice, the employer gives the employee notice in writing that he will contest any liability to pay a redundancy payment pursuant to the claim.

If the employee gives notice of intention to claim,  the employer gives a counter-notice, and the employee continues or has continued, during the next four weeks after the service, to be employed by the same employer, and he has been laid off or kept on short-time for each of those weeks, it is presumed that the condition above, was not fulfilled (i.e. it is to be expected that not later than four weeks afterwards, he would enter employment not less than 13 weeks during which he would not be laid off or kept in short-time).

It is immaterial whether a series of weeks whether it is four, four or more weeks, six or six or more weeks, consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other. No account is to be taken of any week for which the employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee was employed or not and whether it is in the State or not.


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),

Case Law

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