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When: Feb 20, 12
Who: Staff

1. Payment of Wages:-
The frequency of the payment of salary should be set out in the contract of employment. There are also statutory provisions which apply to determine the method in which remuneration is paid.

An employee has a statutory right to be provided with payslips showing their gross wages with all deductions. An employer is prohibited from making a deduction from the employee’s wages unless it is authorised by virtue of the employee’s contract or where the employee has given their consent. If an unauthorised deduction is made an employee can make a complaint within 6 months of the unauthorised deduction taking place.

A bone of contention can arise in respect of the payment of bonuses where employers describe their payment as discretionary. However, even where a bonus is described as discretionary an employee may have a right to receive a bonus by reason of custom and practice.

There have been a number of cases before the courts on this issue and for advice on bonus entitlements you should contact Kieran McCarthy

2. Maternity Issues:-
Pregnant employees have a statutory right to basic maternity leave and the current period for this leave is 26 weeks. Pregnant employees also have a further statutory right to additional maternity leave for a period of 16 weeks. Maternity leave must be taken at least 2 weeks before the expected week of confinement and must be taken for at least 4 weeks after.

As with maternity leave, adoptive mothers have a statutory right to basic adoptive leave of 24 weeks. Adoptive mothers have a further statutory right to 16 weeks additional adoptive leave. There are limited rights for the father unless he is the sole adopter.

There is no statutory entitlement to be paid by your employer during maternity leave however the State Maternity Benefit is payable to employees who are taking basic maternity leave.  However, it is quite common for many employers to pay contractual maternity pay to employees during their basic maternity leave.  It is a matter of the contract in each individual case and accordingly can take many forms.

An employee on maternity or adoptive leave is very strongly protected by the law.  The employee’s statutory and contractual rights remain in place and employment is deemed to continue as normal and so annual leave continues to accrue.  There are also statutory provisions in place in respect of time off for medical visits related to pregnancy and regulations have been introduced in relation to breastfeeding.  In addition if there are risks in the workplace to an employee’s pregnancy, these must be removed by the employer or have the employee transferred to alternative work.

There is no statutory right to paternity leave unless there is death of the mother however some employers may offer paternity leave as a contractual benefit.

Any disputes in relation to maternity leave can be referred to the Employment Appeals Tribunal within a 6 month period.  For advice and information on maternity issues you can contact Kieran McCarthy of this office.

3. Parental Leave:-
Parental leave entitlement applies to a birth parent or an adoptive parent of a child or someone acting in loco parentis to a child.  Generally an employee must have 12 months service to avail of parental leave but may be entitled to pro rata leave where employed for over 3 months.  The entitlement is currently 14 weeks and the right applies to children up to 8 years or up to 16 years if the child has a disability.

Parental leave can be taken in one continuous block of 14 weeks or in separate blocks of a minimum of 6 weeks.  Various arrangements can be agreed directly between employer and employee to agree to allow parental leave in various forms such as half days off until such leave is used up.  If an employee is entitled to parental leave in respect of more than one child (not being children of a multiple birth) the leave in total cannot exceed 14 weeks in any period of 12 months without the employer’s consent.

There is no right to any payment for an employee while on parental leave.  Any disputes on parental leave can be referred to the Employment Appeals Tribunal within a 6 month period.  Compensation of up to 20 weeks’ remuneration can be awarded by the Employment Appeals Tribunal.

You can contact our experienced employment law team for further information on parental leave.

4. Part-time Workers:-
A part-time employee in Ireland is defined an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her.  There have been a number of developments in the law to prevent discrimination against part-time workers and to improve the quality of part-time work.  A part-time worker cannot be treated less favourably than full-time workers solely because they work part-time unless there are objective grounds.

There is also a code of practice in place for employers to assist employees who require access to part-time work. If you wish to change from full-time to part-time work you are not automatically entitled to it.  However, if your employer refuses your request for a change to part-time work then you should be given reasons for the refusal.

For advice on the rights of part-time workers, contact Kieran McCarthy in our Employment Law Department.

5. Agency workers:-
The situation for agency workers in Ireland is a complex area.  There are a variety of tests applied by the Irish courts with a view to determining the status of the working relationship in place.  Often the degree of control exercised over the employee by the Agency and by the end-user will determine who should be considered to be the employer in the event of a dispute.  The issue of who is considered to be the employer can be an important issue in the event of a redundancy or a dismissal arising.

This is a complex area of law and it is therefore essential if you are an agency worker and you have any issues arising out of your employment that you seek the advice of an experienced employment law solicitor who can advise you fully in relation to your rights.  If you have any queries in relation to the rights of agency workers you can contact Kieran McCarthy of this office.

6. If your employer’s company/business has been taken over:-
In the event that your employer’s business is taken over by another business or your employer’s business merges with another business then there is a legal obligation on the new employer to take on the existing staff of the business or the part of the business concerned.  The employee’s accrued service with his or her original employer is deemed to have been with the new employer.  The employee is entitled to terms and conditions of employment with the new employer which are no less favourable than those he or she enjoyed with the previous employer immediately prior to the transfer of ownership.  There are certain exceptions in respect of pension entitlements of the employee in some circumstances.

If you have any queries regarding your rights as an employee when your employer’s business has been taken over, you should contact either Kieran McCarthy for comprehensive legal advice.

7. Sick Leave / Absence from Work:-
There is no statutory right to be paid while absent from work due to illness.  An employee’s entitlement will generally depend on the express terms of his/her employment.  An entitlement to sick pay may, however, be implied from the custom and practice of the employment.

A contract of employment can provide that an employee must remit any amounts receivable from the Department of Social Welfare for the period during which sick leave is being claimed.  It may also provide that an employee should submit a medical certificate after a certain period and that the employee may be required to undergo a medical examination by the company doctor after a given amount of time.

An employer can only dismiss an employee for absences from work if the employee will be unfit for work for the medium or long-term or the employee has abused the sick leave or absence reporting policy.  In any case an employee is entitled to fair procedures/ due process including a right to a fair hearing or consultation before any decision is made.  If you are facing dismissal as a result of being unfit for work or if you are an employer faced with dismissing an employee due to their unfitness to work it is essential that you seek the advice of an experienced employment law solicitor who will advise you fully in relation to this matter.

For any queries in respect of sick leave or absence from work you can contact Kieran McCarthy for expert advice.

8. Health and Safety in the workplace:-
An employer has responsibilities to their employees to provide a safe place of work.  Risks must be evaluated and avoided. In addition the systems of work, work equipment and place of work must be designed to have the minimum effect of this work on the employee’s health.  In short the employer must do whatever is reasonably practicable to ensure the health, safety and welfare of his employees.  As part of their obligations under the legislation employers may need to consider implementing random drug testing of employees and having the appropriate anti-bullying codes in place.

There is a large amount of complex legislation governing this area. It is therefore essential if you are an employee or an employer who requires advice in relation to health and safety issues you should ensure you contact an experienced employment law solicitor who can provide you with comprehensive legal advice.  If you have any queries in relation to this issue you can contact either Kieran McCarthy of this office.

9. Contracts of Employment:-
An employer is obliged to provide an employee with a written contract of employment within the first two months of commencing employment. Legislation dictates that the contract must contain certain express information including; the employers details, a job description, the date of commencement of the employment and the length of time the contract is to run; hours of work; rate and method by which payment is calculated and paid; any probationary periods which are to apply; details of leave entitlements and any collective agreements in place in the workplace.

There are also statutory terms implied into your contract of employment. In addition while you may be classified as an independent contractor in your contract of employment you may actually be considered an employee under the law and therefore entitled to all of the protections and entitlements afforded to employees.

If your employer fails to give you an employment contract you can bring a complaint to the National Employment Rights Authority while in the employment or within 6 months of terminating your employment.

If you have any questions in relation to the interpretation of your employment contract or you require advice on bringing a complaint you can contact Kieran McCarthy in our Employment Law Department.

For up to date information on developments in employment law please see our Blog or you can also follow us on twitter @kieranmccarthys or by clicking on the twitter icon below.

About Us & Contact

Kieran McCarthy & Co. Solicitors
Floor 3B, 6 Lapps Quay, Cork.
t: 021 427 5220 | f: 021 427 5250

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