With Brexit fast approaching and the influx of foreign companies considering Ireland as a potential homing ground, I thought it would be useful to flag a few crucial/important employment law matters that employers should consider or at least be aware of when setting up in Ireland.
1.1 Employment permits
There are currently 3 main employment permits that an employer /employee can apply for. These are:
a. Critical Skills Employment Permit (CSP): this is effectively the gold standard of the employment permits. It is granted for a period of 2 years and requires the individual to be an employee of the relevant Irish entity. The minimum monetary levels for the CSP varies between a minimum threshold of either €30,000 or €60,000 depending on the employee’s occupation.
Upon reaching the expiry of the 2-year term of the CSP and so long as the employee remains in employment, they do not need to apply for a new employment permit but can apply for a stamp 4 visa allowing them to work and reside in Ireland without an employment permit.
b. Intra Company Transfer Employment Permit (ICT): The ICT permit can be for anything between 6 months to two years, with it being extended up to a maximum of 5 years in total. The ICT permit allows for a secondment type arrangement with the two companies being interconnected. The employee must remain on the payroll of the foreign employer for the duration of the permit. One of the positive things about an ICT permit is that the employer does not need to concern itself with the Department of Business Enterprise and Innovation (DBEI’s) ineligible list of occupations which applies to all other permits.
c. General Employment Permit: the GEP is the catch all of the employment permits and permits the holder to be employed in Ireland in a broad range of occupations. However, the role cannot be listed on the Ineligible List. There are a number of limitations to this type of permit, the most obvious being the Labour Markets Needs Test which requires the job to be advertised in Ireland in a number of forums for a specific timeframe before an employee can apply for a work permit. There are, however, limited exceptions to this requirement.
1.2 Short term working visas
Separate to an employment permit, there are also two short-form visas that employees can use to work in Ireland for periods of less than 90 days. These are:
- 14-day business visa – if you come from a country which does not require a visa to enter Ireland, then you can come to the country for a maximum of 14 days to do minimal work and attend meetings. The employee should be accompanied by a letter from his/her employer confirming the purpose of the visit and the dates of the trip. The employee should also have his/her return flight booked.
- Atypical visa – this is a short-term visa, that must be applied for in advance of coming to Ireland, for any timeframe between 15 – 90 days.
2. Employment Law
2.1 Basic Written Conditions of Employment
With the Employment (Miscellaneous Provisions) Act 2018 (MPA) coming into force on 1 March 2019, employers must ensure (senior managers/directors etc included) that all employees are provided with the following 5 basic terms within 5 days of commencing employment:
- the full names of the employer and employee;
- the employer’s address / principal place of business;
- if the contract is intended to be a temporary contract, then the statement should confirm the expected duration and end date of the contract;
- the rate or method of calculation of the employee’s remuneration and the pay reference period; and
- the employee’s hours of work (both per day and per working week).
- Thereafter, there is just under 8 weeks to put in place a more substantial employment contract for the employee concerned.
2.2 Notice periods
Pursuant to the Minimum Notice and Terms of Employment Acts 1973 – 2005 an employer must abide by the following minimum notice provisions, depending on the employee’s length of service.
|Duration of employment||Minimum Statutory Notice|
|0 – 13 weeks||No notice entitlement|
|13 weeks – 2 years||1 week|
|2 years – 5 years||2 weeks|
|5 years – 10 years||4 weeks|
|10 years – 15 years||6 weeks|
|15 years or more||8 weeks|
2.3 Unfair Dismissal
The Unfair Dismissals Acts 1977 -2015 (UDA) will apply to all employees who have 12 months consecutive service. This legislation assumes that the employee is unfairly dismissed, meaning the employer bears the onus of proof of mis-proving this assumption. The UDA not only provides there must be a genuine reason for the dismissal but that the employer also implemented fair procedures in how it actioned the dismissal. The latter being the main issue where employers fall down. If successful in bringing a claim for unfair dismissal, the Workplace Relations Commission (WRC) may make an award of up to 2 years gross remuneration (based on actual loss) or an order of reinstatement or re-engagement.
The Employment Equality Acts 1998 – 2015 (EEA) governs employment equality in the workplace which also includes access to employment. The EEA provides for 9 protected grounds of discrimination namely: age, gender, sexual orientation, civil status, member of the traveller community, family status, race, religion and disability.
There is no service required to bring a claim under the EEA. Therefore, irrespective of the employee’s service, the Company must be mindful that the dismissal or indeed their actions does not constitute discrimination in accordance with one of the nine grounds of discrimination provided for under the EEA. Such actions could result in the employee bringing a claim for discriminatory dismissal and victimisation before the WRC.
Once an employer is on notice of an employee suffering from a disability they are required to take reasonable steps to accommodate that employee. this could take the form of counselling or finding alternative work solutions to reduce stress levels, for example.
If successful in bringing a claim the employee could be awarded compensation of up to 2 years gross remuneration in relation to his/her dismissal and an additional 2 years for victimisation. Unlike the UDA, an award made under the EEA is not based on actual losses but is more akin to damages. Alternatively, the WRC could make an order for re- or reinstatement.
2.5 Protected Disclosures
The Protected Disclosures Act 2014 (PDA) governs the making of a protected disclosure (i.e. whistle-blowing) in an employment environment.
If an employee has made a protected disclosure under the PDA and is subsequently dismissed he/she may be able to show that the dismissal was the company penalising him/her against them making the protected disclosure (presuming, there is some form of a causative link). In common with equality claims, there is no service required to bring a claim under the PDA. The employee would have to show that he/she was penalised as a result of making a protected disclosure, i.e. the act of dismissal. It could also take other forms, like job demotion.
Unique to the PDA, if an employer is able to show that their dismissal was as a result of making a protected disclosure then they can make an application for interim relief before the Circuit Court restraining the dismissal pending the outcome of a hearing of the full whistleblowing claim before the WRC. It should be noted that the threshold for obtaining such an injunction is relatively low – the employee must merely prove that there were substantial grounds for contending that the dismissal was wholly or mainly due to having made a protected disclosure.
If successful before the WRC (post the Circuit Court) the employee could be awarded reinstatement, re-engagement or compensation of up to 5 years gross remuneration. There is limited case law on this legislation. However, the awards to date have not been anywhere near the 5 years mark.
2.6 Employment Injunctions
One of the more unique things in Irish employment law is the ability to go before the High Court to seek an employment injunction either to restrain a dismissal or to prevent an employer from proceeding with an investigation or disciplinary process, due to the employer’s failure to apply fair procedures in initiating the process.
If an employee is successful in obtaining an interlocutory injunction, in the case of a dismissal it will have the effect of an order being put in place preventing the Company from allocating that employee’s duties (e.g. appointing his/her successor) pending the trial of the action, which would normally take place between 9 – 12 months (at a minimum) later. This would mean that the Company would be required to continue to pay the employee’s full salary and benefits in the interim period.
If the injunction is in respect of an investigation or disciplinary process, which is becoming more common these days, then it will involve an order being granted requiring the employer to make changes to the process that is being adopted, and perhaps starting the entire process from the beginning. It should be flagged that the employee won’t necessarily have been dismissed at this stage, so there could always be further injunctive relief sought if the dismissal is not implemented correctly.
An application for an injunction is generally based on an alleged or threatened breach of contract. Under Irish law, employees enjoy a constitutional right to have fair procedures applied before a decision to dismiss is made, which includes any investigation or disciplinary process where an employee’s job is at risk of being lost, particularly in circumstances where such dismissal could have an adverse impact on that employee’s reputation /ability to secure another job (e.g. dismissal on grounds of misconduct). It is also important that the person implementing the dismissal has the correct corporate authority on behalf of the employing entity.
2.7 Minimum wage
As of 1 January 2019, the national minimum wage in Ireland is set at €9.80 per hour, which is up from the previous national minimum wage level of €9.55.
2.8 Gender pay gap
It is still somewhat up in the air as to what will the exact legislation on Gender Pay Gap reporting look like. However, it is hoped that the final legislation will be enacted before the end of 2019. It would also seem that whatever legislation is put in place, will have a staged reporting requirement in place depending on the size of the organisation.
These are only a few of the matters that employers should be aware of, but hopefully, it should give you some useful insight on what are some of the most relevant/topical issues in employment law in Ireland currently at the moment.
Partner | Head of Employment
 Irish statutory employment law forum