Terry Gorry - Employment Law in Ireland: The Essentials for Employers, Employees, and HR Managers

The employment contract is the basis of the employment relationship between employer and employee. However, it is the source of much misunderstanding and strife between employers and employees.

Even though legislation has come to play a huge role in the employment relationship, the legal relationship between employer and employee is rooted in the law of contact. There is no requirement in law that the employment contract be in writing.

However, there is an obligation on the employer under the Terms of Employment (Information) act, 1994 to give employees a written statement of certain terms of employment (see below).

Who is an Employee in Irish Law?

It is vitally important for both employers and employees to firstly understand who is considered to be an employee in Irish law versus the worker being considered to be an independent contractor.

Clearly an independent contractor will not enjoy the benefits of Irish employment legislation.

Contract of service or contract for services?

The vital difference is that an employee works under a contract of service while an independent contractor supplies his/her labour and/or services under a contract for services .

The status of the worker, in a dispute situation, will be determined by legal interpretation and some basic rules.

It is worth noting that regardless of the label put on the relationship by the parties the Courts (and tribunals) will look at the facts of the situation and decide what type of contract exists. In making this decision the decision maker will be influenced by:

-Whether there is written evidence of terms

-Whether there is control over the worker as to what he does, when he does it, why, and how the worker works

-Whether the employee provides his own labour/skill to the employer and cannot assign his duties to another.

The three key areas therefore which a Court or tribunal will consider will be the aspect of personal service, the degree of control over the worker, and any written terms of the contract.

A Deemed Employee

A deemed employee situation will arise where a person is working for an employer through another agency or body.

That person will be a deemed employee of the person for whom they are doing the work. This situation will commonly arise where employment agencies place people in a work environment.

The employment agency must be one as defined by the Employment Agency Act, 1971 but this act defines an employment agency very widely. It is important to note though that the notion of a deemed employee only applies in relation to the application of specific statutes which provide for protection for a deemed employee.

However it can be a potentially costly situation where a business does not know of their potential liability to a deemed employee until a problem occurs and the deemed employer can be held responsible for a dismissal over which he had no control or knowledge.(See also chapter 27 on Temporary Agency Workers).

Before entering into a contract of employment there are three areas that an employer needs to consider carefully.

These areas can be broadly categorized as follows:

1. Advertising the position

2. Interviewing for the job

3. Conditions precedent.

Advertising the job needs to be approached carefully by the employer as it is easy to fall foul of employment equality legislation.

In addition, the wording of the advertisement can be held to form part of the subsequent contract of employment.

Employers also need to be careful not to ask questions which fall foul of the Employment Equality Acts, 1998-2004. Asking questions that could be considered discriminatory on the grounds of age, marital status, sex, and the other grounds referred to in employment equality legislation can leave the employer open to a successful claim for discriminatory treatment.

Keeping note of the interview is recommended as what is said at interview (by both parties) can be held to form part of the subsequent contract.

The employer may make a job offer conditional on certain conditions being fulfilled, depending on the position.

These conditions may cover Garda vetting, clean driving licence, health to do the job, suitable references, registration with professional bodies, and others-this will depend very much on the nature of the work and position.

The areas of references and medical examinations can cause problems and the key principle always for the employer is that he has the employees consent to take up references and medical reports/evidence.

The Data Protection Commissioner has held that the employer needs written consent to take up references. However, there is no general requirement in law that an employer furnishes a reference.