Specifying Terms
Contract Law
The terms of the employment relationship, including the mutual rights and obligations of employees and employers, depend in large measure on the terms of the particular employment contract. The basic principles of contract law apply to employment contracts. See the sections on contract law.
To a large extent employer and employee are free to ‘agree ‘ the terms of employment. Many aspects of the employer and employee relationships will turn on what the terms of the contract are.In practice, there may be very little element of free agreement in that the employee may have to take and accept the employer’s standard terms and conditions.
Contract terms are as supplemented by a substantial amount of employment legislation. Employment legislation provides for mandatory rules in relation to many aspects of the employment relationship. These rules usually override any contract of employment varying them or granting lesser rights. They are said to create a “floor” minimum rights for employees. Typically under employment legislation, the employer and employees can agree more generous, more favourable terms to be employees but not less generous terms.
Written Terms
There is no general requirement that an employment contract should be in writing. There are some exceptions, such as by statute in relation to certain apprenticeships.
Generally, an employment contract need not be in writing. Even if an employment contract is in writing, the contract may not be complete. There may be terms which are implied in the particular circumstances at common law.
Mandatory employment legislation may inform enhance or overrule the terms of the contract in some respects. The actual rights and obligations may depend on a combination of the contract of employment, implied terms and the minimum legal or statutory rights which the law prescribes.
There is a requirement that a statement of the terms of employment must be given to an employee within a certain period after commencement of employment. These terms may form part or a substantial part of the contract or the whole contract.
The notification of terms of employment is made after employment commence. Under contract law, the terms of the contract of employment will be fixed at the commencement of employment, although they may be varied afterwards.Where there is a change in the terms of employment, a further notice must be given.
Formality of Contracts
Some employees, particularly more senior employees, may have formal employment contracts. The contracts of senior employees may be negotiated between legal or other advisers. If there is a written employment which appears to cover all matters then the normal contract presumption will apply, that it comprises the entire agreement.
More commonly, employees are given a letter of appointment or standard employment contract on its standard terms and conditions, without the possibility for negotiation of the terms. In other cases, there may be no written employment contract, but the terms of employment as notified under statute confirm the key terms of the contract.
In some cases, some or many contract terms may be found in a Staff Handbook.It may include or be supplemented by policies on a range of issues. Some may be subject to change from time to time.
Statutory Implied Terms
There are a number of types of implied employment contract terms. One type of implied term is those implied by employment protection legislation. They are dealt with in the other chapters in this guide. They include rights not to be unfairly dismissed, freedom from discrimination, rights to redundancy, minimum notice, etc..
Health Safety and Welfare legislation and common law duties of employers’ liability imply terms into a contract of employment. These cover not only the employer’s duty but also an employee’s duty to conduct himself with reasonable care and attention.
Common Law Implied Terms
An implied term can arise based on the presumed intention of the parties.Terms may be implied into employment contracts by custom or practice. Many industries or workplaces have particular customs or practices which may be incorporated into the employment.
Some terms may be incorporated of necessity. In order to be incorporated, the term must be reasonable and necessary so that the contract would be ineffective without it. It must be obvious and goes without saying and must not contradict the express terms of the contract.It may be a necessary legal incident of the contract.
Where an employee alleged in an Irish case that there was an implied obligation on directors of a then liquidated company to obtain employer’s liability insurance, it was held that the implication of such a term was not an absolutely necessary requirement and the argument was rejected.
Implied from Collective Agreement
In unionised employment, there are commonly collective agreements, which deal with matters that may become terms and conditions. New employees should be given a copy these agreements in so far as they are affected by them.
Where collective agreements are varied, the varied collective agreement may be incorporated into the contract. However, it cannot generally be incorporated, if the employee objects.
Separately, there are provisions under Industrial Relations legislation by which certain terms and conditions can be lawfully made part of an employment contract automatically. See our chapter in relation to Joint Labour Committees and Joint Industrial Councils. There are some other cases in the public or semi-state sector where legislation in the particular sector may bear directly on employment contracts.
Duty of Loyalty and Good Faith
Employees have a duty of fidelity and loyalty in employment. There is a requirement to maintain the necessary trust and confidence that must underpin an employment relationship. An employee who receives a secret payment from a customer would breach the duty of fidelity. The employee would generally be made repay such sums.
The copying of key information such as client lists and confidential information prior to leaving employment may constitute a breach of the duty. The duty of fidelity may imply a duty to maintain information confidential after cessation of employment. For example, a butler who sold secrets and personal information about his employers to a national paper was found to be in breach of the duty.
The duty of fidelity is often referred to as a duty of trust and confidence. Both employer and employee have a mutual duty. Breach by either party of the duty may entitle him to terminate employment and to claim damages.
Right to Notice of Terms
There is an obligation on an employer to deliver particulars of the terms of employment. It applies to employees employed more than four hours a week. An employee includes
- a contract of service or apprenticeship, or
- a contract with an employment agency to do work for another.
An initial statement is required within five days after the commencement of employment. A more detailed statement must be provided in writing not less than one months after the commencement of employment.
The definition of an employee is extended for this purpose to include
- civil servants
- members of an Garda Siochana
- members of the Defence Forces
- members of certain public authorities
Initial Notice (5 Days)
An employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following
particulars of the terms of the employee’s employment, that is to say:
- the full names of the employer and the employee;
- the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);
- in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;
- the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;
- the number of hours which the employer reasonably expects the employee to work per normal working day, and per normal working week;
- where applicable by law, the employer’s policy on the manner in which tips or gratuities and mandatory charges are treated,
- the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;
- either the title, grade, nature or category of work for which the employee is employed, or a brief specification or description of the work;
- the date of commencement of the employee’s contract of employment; a
- any terms or conditions relating to hours of work (including overtime);
- where a probationary period applies, its duration and conditions.
Further Notice (4 weeks)
The following details are required to be given within by further notice withing one month of the commencement of employment.
- a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]
that the employee may, under the National Minimum Wage Act request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period - the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
- any terms or conditions relating to paid leave (other than paid sick leave),
- any terms or conditions relating to incapacity for work due to sickness or injury and paid sick leave, and pensions and pension schemes,
- the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment)to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
- a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made,
the training entitlement, if any, provided by the employer, - in the case of a temporary contract of employment, the identity of the user undertakings relating to temporary agency work), when and as soon as known, and
- where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.
If the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —
- the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,
- the reference hours and days within which the employee may be required to work, and
- the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and
Statutory Information to be Notified
The information required to be notified to the employee is as follows
- the full names of the employer and the employee;
- the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act);
- the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places;
- the title of the job or nature of the work for which the employee is employed;
- the date of commencement of the employee’s contract of employment;
- in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
- a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order;
- the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act;
- that the employee may, under the National Minimum Wage Act request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period;
- the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval;
- any terms or conditions relating to hours of work (including overtime);
- any terms or conditions relating to paid leave (other than paid sick leave);
- any terms or conditions relating to incapacity for work due to sickness or injury and paid sick leave, and pensions and pension schemes;
- the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment)to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice;
- a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
Notice Requirements
A statement furnished by an employer shall be —
- signed and dated by or on behalf of the employer,
- in writing, and
- transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.
Where a statement contains an error or omission, the statement shall be regarded as complying if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.
Each of the 5 days and 4 weeks statements referred shall be given to an employee, notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.
Certain of the items specified may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.
A copy of a statement furnished shall be retained by the employer during the period of the employee’s employment and for a period of 1 year thereafter.
The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those above) as may be specified in the order and employers
shall comply with the provisions of such an order. The Minister may by order amend or revoke the detailed requirements from time to time.
Employment Outside the State
If an employee is required to work outside the State for a minimum period of one month, certain further information must be given at least one month before departure from the State.
- the country or countries in which the work outside the State is to be performed and the anticipated period of employment,
- the currency in which the employee is to be remunerated in respect of that period,
- any benefits in cash or kind for the employee attendant on the employment outside the State,
- the terms and conditions, where appropriate, governing the employee’s repatriation.
Where an employee is a posted worker within the meaning of the European Union (Posting of Workers) Regulations there shall be added to the statement the following particulars —
- the remuneration to which the employee is entitled in accordance with the applicable law of the host Member State,
- where applicable, any allowances specific to posting and any arrangements for reimbursing expenditure on travel, board and lodging, and
- the link to the single official national website developed by the host Member State concerning the posting of workers
This does not apply to seafarers or sea fishermen.
Certain particulars may be given in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing such particulars.
Duties on Change in Employment Terms
Whenever a change is made or occurs in any of the particulars of the statement furnished by an employer, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter. This may be not later than—
- the day before the change takes effect, or
- where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
This obligation does not apply in relation to a change occurring in provisions of
- statutes or instruments made under a statute other than a registered employment agreement or employment regulation order, or
- of any other laws or of any administrative provisions or collective agreements referred to in the statement.
Pre- 2022 Regulations Employees
Where, before the commencement of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022), an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement containing the particulars specified in relation to
- the initial 5 days’ notice
- the 4 weeks’ notice
Enforcement
It is an offence for an employer to fail to provide the required statements of employment. It is an offence to deliberately or recklessly provide false or misleading information to an employee as part of the statement of terms .A person guilty of an offence u shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.
An employer must not penalise or threaten to penalise an employee for
- invoking any right under the legislation,
- opposing by lawful means un something that was unlawful
- giving evidence in proceedings
- notice of intention to do any of the above.
Penalisation means any act or omission by the employer runs behalf that next the employee to his detriment in relation to the terms and conditions of employment. It may include suspension dismissal a layoff the motion loss of opportunity for promotion transfer of duties change of location or place of work reduction in wages change in working hours in position of any discipline reprimanded for the penalty any coercion or intimidation
If the penalisation constitutes a dismissal of the employee relief may be by way of unfair dismissal or for the penalisation.
The right to complain to the WRC for breach of legislation applies to a person who has been employed for more than a month.
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/
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
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