Latest Updates

Fixed Term Contracts

The term, fixed-term employee, covers employees whose contract ends on a specified date, or when a specific task is completed, or when a specific event occurs. A fixed-term contract can also involve a specified-purpose and so may not end on a specific date.

The Act provides that fixed-term employees may not be treated less favorably than comparable permanent employees unless the employer can objectively justify the different treatment. Any justification offered cannot be connected with the fact that the employee is on a fixed-term contract.

Section 8 (1) specifically requires the employer to inform the employee in writing as soon as practicable of the objective condition determining the contract.

Section 8 (2) provides that where the employer proposes to renew a fixed term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

Section 9 (1) of the Act provides that where a fixed term employee completes or has completed his or her third year of continuous employment then the fixed term contract may be renewed by the employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.  Section 9 of the Act prevents the renewal of a fixed term contract which effect is to bring the aggregate period of such periods to more than four years, except where there are objective grounds for renewal.

Section 9 (3) provides that once the four-year threshold has expired then the fixed term contract is transmuted into a contract of indefinite duration by operation of law, unless there is an objective justification for not ordering the status of the contract in this way.

Continuous service means that the service of an employee is continuous unless it is terminated either by the dismissal of the employee or by the employee voluntarily leaving the employment. The dismissal of an employee followed by immediate re-employment of the employee does not break an employee’s service.

The burden of proof is on the employer with regard to objective grounds justifying the renewal of the fixed term contract. Case law has shown that vague generalisations, unsubstantiated claims and financial reasons alone will not suffice.

Fixed term workers are excluded from the protection of the Unfair Dismissals Acts by virtue of the fact that the contract has come to an end (either by expiry of the term or the arrival of the specific purpose event) provided three conditions are met:

  1. The contract was in writing
  2. The contract states that the Unfair Dismissals act will not apply to a dismissal which occurs only as a result of the end of the contract arriving
  3. The contract was signed by both employee and employer.

 

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Paternity Leave

With effect from 1 September 2016, new parents (other than the mother of the child) are entitled to paternity leave from employment or self-employment following birth or adoption of a child. The Paternity Leave and Benefit Act 2016 provides for statutory paternity leave of 2 weeks. The provisions apply to births and adoptions on or after 1 September 2016. You can start paternity leave at any time within the first 6 months following the birth or adoption placement.

Payment during paternity leave

Your entitlement to pay and superannuation during paternity leave depends on the terms of your contract of employment. Employers are not obliged to pay employees who are on paternity leave. You may qualify for Paternity Benefit from the Department of Social Protection if you have sufficient PRSI contributions. However an employee’s contract could provide for additional rights to payment by the employer during the leave period, so that, for example, the employee could receive full pay less the amount of Paternity Benefit payable.

 

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Accrual of Annual Leave

From August 1st 2015 Sec. 86 of the Workplace Relations Act entitles workers to accrue annual leave when on long term sick leave. Previously, under Sec.19 of the 1997 Organisation of Working Time Act, employees only accrue annual leave in respect of hours actually worked. However, under the new provisions, employees on sick leave will continue to accrue and retain annual leave for up to 15 months from the end of the leave year in which it was accrued. This entitlement is in respect of statutory annual leave only. The change in Irish legislation is in response to the European Union Court of Justice ruling on accrual of annual leave entitlements and will bring clarity in Irish law when an employee cannot take their paid annual leave due to illness. The amendment to the legislation will have the following effects:

• Statutory annual leave accrues during a period of certified sick leave.
• An annual leave carryover period of 15 months after a leave year will apply to those employees who could not, due to illness take annual leave during the relevant leave year or during the normal carry over period of 6 months.
• On termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued. This amendment brings the Organisation of Working Time Act into line with recent rulings of the Court of Justice of the EU.

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Legal Updates

Whistleblowing Protection. 

The Protected Disclosures Bill 2013 on Whistleblowing Protection was passed by both Houses of the Oireachtas and signed by the President in July 2014.

The new legislation provides comprehensive whistleblower protection across all sectors of the economy and will co-exist alongside the existing limited protection available in certain sectors of the economy.

Protection is provided to a worker who makes a protected disclosure of relevant information to their employer, prescribed person (as prescribed by the Minister), Government Minister, legal advisor, trade union official or disclosure in other cases as set out the Bill. There is no mandatory requirement to disclose the relevant information to the employer at first instance; however the stepped approach to disclosure as set out in the legislation is designed to encourage workers to raise the issue internally. 

The protection available to workers protects against a resulting dismissal and any penalisation a worker may experience due to making a protected disclosure. The Bill introduces a number of amendments to the Unfair Dismissal Acts 1977 to 2007; there is no service requirement to avail of the protection in the Bill, and the redress available for dismissal by reason of making a protected disclosure is increased from 104 weeks to 260 weeks.

The legislation places a statutory duty on public sector employers to put in place policies and procedures to deal with whistleblowing. However it is advisable for all employers to have a policy and procedures covering protected disclosures in place, including a clear reporting structure.

For more information on developing a Whistleblowing Protection Policy, email us now This email address is being protected from spambots. You need JavaScript enabled to view it.

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