Research and Social Policy Report: Employment Rights 2000

September 2000

Contents

• Preface
• Chapter 1 - Context of Report and Summary of Main Points
• Chapter 2 - Enforcement Issues
• Chapter 3 - Specific Employment Issues
• Appendix One: Summary of Recent Employment Legislation
• Appendix Two: Summary of Enforcement Structures
• Appendix Three: Sources

Preface

While a number of legislative measures in respect of employment protection have been introduced during the past decade, significant problems are still experienced by certain categories of workers, as evidenced by queries from members of the public to Citizens Information Centres (CICs) throughout the country. CICs dealt with 240,000 queries during 1999 and approximately 14 per cent, a growing proportion, of these queries referred to employment rights. Feedback from CICs during 1998 and 1999 pointed to significant problems being experienced by workers, particularly those in part-time and casual work and/or those who are not members of a Trade Union. It was against this background that the present report was prepared.

Comhairle has as one of its functions to provide information on the effectiveness of current social policy and services and to highlight issues which are of concern to users of those services. Because of its links to information services on the ground, Comhairle is well placed to be an effective broker in respect of issues that concern to the public. This Report is the first in what is envisaged will be a series of Comhairle reports on social policy issues.

The Report identifies instances and documents case examples from CICs where there are either breaches of regulations or where existing provisions are unsatisfactory. The policy issues arising out of these instances are identified and recommendations are set out accordingly. Problems are identified in respect of holiday, maternity leave, special and sick leave entitlement; terms and conditions of employment; payment of wages; and employment of children and young persons. There is also some evidence of breaches of legislation by employers in relation to requirements to provide pay slips to employees and information on terms and conditions of employment. There are instances which suggest that workers who seek to assert their rights are dismissed before the provisions of unfair dismissals legislation come into effect.

There are significant information deficits on the part of some employees in relation to their rights and entitlements. In some situations workers appear to rely on the employers for this information. Employers may not always provide information to employees that is accurate and up to date in terms of rights and entitlements. Indeed, it is the case that in some instances employers also suffer from an information deficit in regard to workers' rights and entitlements.

It would appear that there is a general reluctance on the part of employees in certain situations, as outlined above, to seek information or discuss employment conditions and rights with employers because of fear of reprisal. Contact with enforcement agencies to seek redress often occurs only after the person has already left the employment. Against this overall background it is hardly surprising that information and advice services report an increasing number of queries in relation to employment issues.

There is a particular issue in relation to people who engage in rehabilitative employment in sheltered workshop situations and who are not covered by employment protection legislation. The recommendations of the Commission on the Status of People with Disabilities that the status and rights of people with disabilities in sheltered work settings should be defined and appropriately protected and that standards should be introduced for the establishment and operation of sheltered workshops have not been implemented. This is an issue which needs to be addressed as a matter of some urgency by Government in consultation with employers, trade unions and organisations of people with disabilities. It is noted that the Programme for Prosperity and Fairness promised a review in this area and that work has commenced on a Code of Practice.

While the Report contains a number of recommendations in relation to specific aspects of employment legislation, the most significant problem identified relates to the actual enforcement of existing legislation. There is a need for much greater co-ordination in the area of enforcement and implementation of legislation. The establishment of an Employment Inspectorate with a strong local dimension which would integrate and expand existing roles should be examined. The overall objective of such an Inspectorate would be to ensure that, when an employment premises was visited by a public official, all aspects of the law would be inspected.

Improvements are also necessary in respect of informing both employees and employers of the provisions of employment protection legislation. The Report identifies a number of ways in which this could be addressed. Indeed, the information deficit problem could be improved significantly if it was made mandatory for employers to display information on employment rights in the same way as they are obliged to display information about the legislation covering the employment of young people.

The introduction of national minimum wage legislation in April 2000 together with the commitments given in the Programme for Prosperity and Fairness -- to review health and safety legislation, to examine the case for providing additional resources for the Health and Safety Authority, to implement the EU Directive on Part -Time Work and to promote family friendly workplace policies -- indicate a willingness on the part of Government to address workplace and employment issues. It is to be hoped that this commitment will also translate into stronger and more integrated enforcement structures, more comprehensive information on employment rights and amendments to legislation in specific areas identified in this Report.

Chapter One - CONTEXT OF REPORT AND SUMMARY OF MAIN POINTS

This Report draws on the experience of information and advice services in relation to employment protection issues. Within Citizens Information Centres (CICs) the number of employment related queries has been increasing. A survey in 1999 of CIC queries showed that 14% related to employment issues. This category (along with health services queries also at 14%) was the second highest category after social welfare queries (50%).

The records of the recently inaugurated Citizens Information Phone Service in Cork show that 20% of its queries in November 1999 were employment related.

As well as individual queries, employment issues also figure strongly in the wider social policy matters raised by CICs. Thus in the first six months of 1999 16% of such matters were employment related.

In 1999 the Employment Rights Information Unit of the Department of Enterprise, Trade and Employment dealt with 82,069 calls.

The past decade has witnessed the enactment of a wide range of employment protection legislation. A summary of this legislation below illustrates the sea change there has been in the whole employer - employee relationship during the period.

While some of the legislation referred to extends the scope of previous legislation, a considerable body of it covers entirely new ground, for example, a national minimum wage, the right to a wage slip, adoptive leave, statutory provision for rest periods, and parental leave (albeit unpaid). Some of the legislation also reflects the influence of EU Directives on our employment legislation, such as the Protection of Young Persons (Employment) Act 1996 and the Parental Leave Act 1998.

It is also worth noting that there is every reason to expect that the pace of legislative change witnessed in the last decade will continue in future. The proposed legislation relating to protected leave for carers and the need to comply with the EU Part-time Work Directive are two illustrations of this point.

The level of new employment protection legislation has implications for employees, employers and their respective organisations. For example, all concerned have to try to keep abreast of the changes and to work, on a practical day to day basis, with what is often quite complex legislation. A case-study referred to in the report of an employer still applying the previous legislation to an employee's annual leave entitlement a considerable time after the Organisation of Working Time Act 1997 came into force, illustrates the difficulties in this regard.

There are implications also for the institutions and mechanisms by which the legislation is policed, and rights enforced. It is questionable whether the resources available to the institutions concerned have kept pace with the level of increased demand arising from new employment protection measures. Likewise the mechanisms available to deal with disputes and enforce rights have become more complex.

The increase in the level of queries on employment matters does not only arise from extra volume of employment protection legislation. Clearly the increased numbers in the workforce is also a major contributory factor. In particular there are greater numbers in atypical work situations such as part-time employment (30% of the female work force: CSO Statistical Bulletin December 1999), fixed-term and zero hours contracts etc. A number of the case-studies in this report also point to greater flexibility being demanded of employees by employers, often with little or no consultation, leading to a break-down in the employee - employer relationship.

It needs also to be recognised that there is a sizeable group of people on the extreme margins of recognised employment status. For such people the question of protection and rights is often very problematic. The people affected include those in various employment schemes and people with disabilities in sheltered work situations. The situation of this latter group was highlighted in a 1997 Report of the National Rehabilitation Board entitled "Employment Challenges for the Millennium". With reference to those in sheltered work situations the Report concluded :

These workers are vulnerable. They have no legal protection nor are there any quality standards in place to ensure that their rights and entitlements are appropriately protected. They are not in a position to use legislation to enhance their own positions in the 'workplace' regardless of the number of hours worked (many people are working full weekly hours), or the length of time or service in their 'jobs' (p.12).

This Report draws on the experience of information and advice services in relation to employment protection issues. These services are generally availed of by non-unionised employees and the majority of employees in the case-studies reflect this norm. It is precisely these employees (often in the younger age group and in low paid jobs) that are most at risk of failing to receive entitlements under employment legislation. For such employees the gap between the theory of employment protection legislation and its implementation is at its widest. Unless such legislation is a reality for even the most vulnerable of employees then its effectiveness must be called into question.

Summary of Main Points

Enforcement Mechanisms

There is a diverse and bewildering range of agencies responsible for the inspection and enforcement of the different aspects of the employment situation including employment protection legislation, health and safety, and tax / social welfare matters. The procedures for enforcing rights can be complex and confusing.

Sufficient resources to ensure compliance with employment protection legislation need to be made available. The number of inspectors in the Department of Enterprise, Trade and Employment needs to be increased substantially. The 1999 complement of just ten inspectors is clearly inadequate to enforce the entire range of employment legislation. While the additional seven appointments approved by the Government is to be welcomed, this staff increase must be put in the context of considerable extra demands on the Inspectorate due to the National Minimum Wage Act 2000.

• There is a need for much greater co-ordination in the area of inspection. The question of an overriding employment inspectorate, integrating and expanding existing roles, should be examined.
  There needs to be a standardisation of procedures concerning referrals of employment rights cases.
• There is a need for institutions involved in enforcement to have regional offices to ensure greater accessibility for citizens to their services.
• Given the already increasing role of the Rights Commissioner Service, there is a need to review the likely future development and requirements of the service. The service is now in a much more pivotal position in terms of employment protection measures than could have been envisaged in the service's original industrial relations brief.
  
• An amendment to the Unfair Dismissals Acts 1977 - 1993 is required to remove the one year's service requirement in all cases where an employee is dismissed for seeking to avail of or enforce employment legislation.
  
• The protection of the Insolvency Fund should be extended to cover "informal" insolvencies or an alternative method should be introduced of forcing an insolvency where a company ceases trading. Under existing procedures the cost of forcing compulsory liquidation in the High Court is prohibitive and beyond the means of an employee who has obtained an average compensatory award from the Employment Appeals Tribunal.
  
• Legal aid / advice needs to be made available for Employment Appeals Tribunal cases subject to the normal criteria of compliance with the means test, a reasonable case, and no other means of obtaining legal assistance (e.g. through trade union membership).

Issues Concerning Specific Employment Legislation

Holidays

• The experience of Citizens Information Centres (CICs) points to a considerable information deficit concerning annual / public holiday leave entitlements, particularly amongst part-time employees. In addition employees are often reluctant to insist on entitlements due to a fear of dismissal. The Department of Enterprise, Trade and Employment, in conjunction with the social partners and information services, should conduct an information campaign to disseminate the details of the relevant legislation to both employees and employers.

Part-time Employees

• There is evidence of considerable confusion amongst both employees and employers as to what number of hours constitute "part-time work" and what rights "part-time employees"" enjoy. As a result there is a need for information concerning this issue to be targeted at industries that traditionally use such employees. Basic information could, for example, be supplied along with Revenue Commissioners forms to identified part-time workers.
  
• As far as possible our legislation should move towards a unified approach to part-time employees and be based on the principle that, in general, all employment protection measures should apply to all employees, regardless of hours worked.
  
• Part-time employees are often non-unionised and the most vulnerable to the denial of even the most basic of employment rights and hence sufficient resources need to be made available to the relevant authorities to ensure adequate inspection of work places regularly using such employees.

Contract of employment

• There are considerable advantages to be gained from ensuring that employers provide employees with the required written statement of contractual terms. The formal clarifying of the basic terms of the employment contract helps avoid unnecessary disputes and allows the Rights Commissioner Service / Employment Appeals Tribunal to direct resources to where they are most needed. The Department of Enterprise, Trade and Employment should initiate a campaign to encourage compliance with the law and, if necessary, apply sanctions to employers in continuing breach of the legislative provisions. At present the onus is on individual employees to enforce their rights under the legislation. Given the State's interest in ensuring compliance, the legislation should be amended to provide for the prosecution of employers in default of their statutory obligations.
  

Wages

• There is evidence that many employees do not receive a wage slip as required by the legislation. There is also a lack of information concerning what deductions from wages are legally allowable. One method of disseminating information on these matters would be for the Revenue Commissioners to include details of the legislation in standard literature sent to employers and employees.
  

Dismissal

• A significant gap in the existing legislative protection against unfair dismissal arises from the fact that an employee with less than one year's service could be dismissed for seeking even the most basic of employment entitlements, and have no redress.
• In order to make employment protection legislation a reality for all employees, the general concept of protection from dismissal for seeking to enforce a statutory right regardless of length of service needs to be enacted. This concept is already accepted in certain of our legislation (for example the Maternity Protection Act 1994 and the National Minimum Wage Act 2000) and needs to be extended to embrace all aspects of employment legislation.

Safety, Health and Welfare / Working Time / Harassment

• There is evidence of a continuing failure on the part of many employers to deal adequately with health and safety issues including the drawing up of safety statements. Particular concern arises in the failure to address health and safety issues in regard to pregnant employees. In addition harassment and bullying in the workplace are often not treated with the seriousness or alacrity that is required. There is a need, not only, for the dissemination of appropriate information, but also for adequate enforcement of the requirement for all employers to have a safety statement. Ensuring the provision of a safety statement in all workplaces should be the first priority in order to put in place proper procedures. In order however to deal with persistent problems the relevant authorities need to have the resources available to ensure effective enforcement of all health and safety requirements.
• The rate of Health and Safety Benefit should be brought into line with that of Maternity Benefit.

Maternity / Parental Leave / Force Majeure Leave

• Information concerning the principal features of the Maternity Protection Act 1994 such as the right to maternity leave and the right to return to work appears to be reasonably widely available. However the queries being received by CICs would suggest that there is still a significant lack of information concerning entitlement to paid ante / post natal leave and the position concerning annual leave / public holidays while on maternity leave. The co-ordinated dissemination of information on these issues should be a priority for State agencies, employer organisations, trade unions and information providers.
  
• Dismissal due to pregnancy or seeking a related entitlement continues to be recorded by CICs. Ultimately such practices will only be eliminated by accessible and effective enforcement procedures against those employers who fail to comply with the law.
  
• At present in order to qualify for Maternity Benefit, a woman must be in employment which is covered by the Maternity Protection Act 1994 immediately before the first day of her maternity leave (the last day of insurable employment may be within 10 weeks of the expected date of the birth of the baby) in order to be able to claim Maternity Benefit. Consideration should be given to allowing some relaxation of this requirement in cases where a woman was employed up to shortly before her leave was due to commence and would otherwise fulfill the contribution conditions for payment of benefit.
  
• A recent determination of a Rights Commissioner concerning parental leave has established that, where an employer refuses to give consent for the leave to be taken in stages, a Rights Commissioner has no authority to determine that the leave will be taken otherwise than in one period. The Parental Leave Act 1998 should be amended to allow a Rights Commissioner / Employment Appeals Tribunal to determine that the leave may be taken in separate periods where an employer is found to be acting unreasonably by insisting that it be taken in one period.

Employment of Children and Young Persons

• There is a general acceptance that the legislation in this area is being widely breached and that effective enforcement is absent. The results can be extremely detrimental to the educational needs of many young people.
  
• There is a need for increased inspection to ensure that employers with young employees are complying with the legislation. Employers failing in their duties should face prosecution.
  
• Other ways in which the conditions of young people at work could be enhanced include:
• proper rates of pay, at least in line with the national minimum wage requirements appropriate to young people;
• provision of transport from work, particularly late at night, where no public transport is available;
• allowance of time off in the period before examinations;
• right to return to work for those who have taken time off for examinations;
• proper training, including induction training;
• extension of the requirement for formal written consent from parents /guardians, currently required in the case of children, to the employment of young people as well;
• employers of children/young people should be required to inform parents / guardians of the details of the legislation as well as the employees themselves.

Chapter Two - ENFORCEMENT ISSUES

Introduction

The major issue arising from the experience of Citizens Information Centres is that of the effectiveness of employment legislation enforcement. The case studies throughout this Report point to a significant gap between the, often admirable, legislative protection and the ability of employees to be able to enforce their statutory rights. The bridging of this gap is of vital importance if legislative protection is to be meaningful for even the most isolated of employees. The reasons for the gap are varied but include such issues as a lack of resources, complexity of procedures and the need for increased protection for employees seeking to enforce rights.

Summary of structures

Rights Commissioner Service

This is comprised of independent officers of the Labour Relations Commission who investigate disputes concerning a wide range of employment protection matters. Hearings are in private, except for Payment of Wages Act disputes where there is provision for public hearings. Rights Commissioners will, in many instances, endeavour to facilitate a settlement between the parties. If no such settlement is possible, the Rights Commissioner will issue a decision on the case. If either party is dissatisfied with the decision there is the right of appeal to either the Employment Appeals Tribunal or the Labour Court depending on the particular legislation involved.

Employment Appeals Tribunal

This is an independent tribunal each division of which consists of three members that hears a wide range of cases concerning employment protection legislation. Each division consists of a legally qualified chairperson, and two persons, one each from panels put forward by organisations representing employee and employer interests respectively.

Labour Court

The main function of the Labour Court is the settlement of trade disputes. The Court is arranged into three divisions consisting of a chairperson, two deputy chairpersons, and six ordinary members. The ordinary members consist of three employer representatives and three employee representatives appointed by the Minister for Enterprise, Trade and Employment after nomination by the Irish Business and Employers' Confederation (IBEC) and the Irish Congress of Trade Unions (ICTU).

The Director of Equality Investigations

The Office of the Director of Equality Investigations is one of the bodies which investigate certain complaints arising from the Employment Equality Act 1998.

The Labour Inspectorate - Department of Enterprise, Trade and Employment

The Inspectorate has the responsibility for enforcing employment legislation generally, including Payment of Wages Act 1991, Terms of Employment (Information) Act 1994, Protection of Young Persons (Employment) Act 1996 and the National Minimum Wage Act 2000.

The Health and Safety Authority

The Health & Safety Authority is a State-sponsored body, established under the Safety, Health and Welfare at Work Act 1989. It aims to promote a working environment in which the safety and health of persons at work is ensured at the highest practicable level.

In 1999 the Authority received 1,188 complaints, and 84 prosecutions were initiated

Summary of legislation

Employees in dispute with their employers over non-compliance with employment protection legislation must seek to enforce their rights through a variety of institutions and mechanisms. For example:

• Under Unfair Dismissals Acts 1977-93, reference is either to the Rights Commissioner Service or the Employment Appeals Tribunal. If the employee chooses the Rights Commissioner service and the employer objects, then the employee will need to refer the case to the Employment Appeals Tribunal.
• Under Redundancy Payments Acts 1967-91 / Minimum Notice and Terms of Employment Act 1973 / Workers Protection (Regular Part-Time Employees) Act 1991, referrals are to the Employment Appeals Tribunal only.
• Most recent employment protection legislation has adopted the procedure that the initial application is made to the Rights Commissioner Service with an appeal to the Employment Appeals Tribunal. The employer does not have the option of objecting to a Rights Commissioner hearing, as is the case under the unfair dismissals legislation. This procedure has been adopted under the following legislation:
• Maternity Protection Act 1994;
• Payment of Wages Act 1991;
• Terms of Employment (Information) Act 1994;
• Protection of Young Persons (Employment) Act 1996;
• Adoptive Leave Act 1995;
• Organisation of Working Time Act 1997 (appeal to Labour Court);
• Parental Leave Act 1998.
• The Employment Equality Act 1998 provides for a number of different mechanisms for referring complaints depending on the precise nature of the complaint. As a result complaints under the legislation may be referred to the Director of Equality Investigations, the Labour Court or the Circuit Court.
• Failure by an employer to implement a Rights Commissioner decision or an Employment Appeals Tribunal determination will require a reference to the Circuit Court in most cases, but in some instances to the District Court.
• Where a company fails to comply with a court order and it has gone into either voluntary or compulsory liquidation application may be made for payment of an outstanding award by the Insolvency Fund established under the Protection of Employees (Employers' Insolvency) Act 1984.

Background

There are four Rights Commissioners and in 1999 they received 2,996 referrals and held 989 hearings. Thirty-five per cent of the referrals were under the Industrial Relations Acts.

In 1998 3,626 cases were referred to the Employment Appeals Tribunal including appeals from Rights Commissioners compared with the 1997 figure of 3,429.

The Health and Safety Authority made 8,729 formal inspections of workplaces in 1999.

The Labour Inspectorate within the Department of Enterprise, Trade and Employment, according to a reply by the Minister of State at the Department of Enterprise, Trade and Employment, Tom Kitt T.D. to a Dail question in October 1999, consisted of 10 inspectors to cover the entire country on the full range of employment protection measures. In a further Dail reply in March 2000 the Minister stated that the Government had given approval for the recruitment of an additional seven inspectors.

Issues

• There are a diverse range of agencies responsible for inspection and enforcement of the different aspects of the employment situation including employment protection legislation, health and safety, and tax / social welfare matters. For example a relatively straightforward unfair dismissal case might involve an aggrieved employee in dealings with the following:
• the Rights Commissioner Service and/or the Employment Appeals Tribunal, in relation to the actual dismissal;
• the Revenue Commissioners, for example, in relation to the non-receipt by the employee of a P45 form; and
• the Department of Social, Community and Family Affairs and the Social Welfare Appeals Office if, for example, there has been a suspension of unemployment benefit payment due to a Departmental opinion that the dismissal arose from the fault of the employee.
• In employment protection alone the array of institutions and their jurisdictions can be bewildering for an employee seeking to enforce his/her rights. The details of the present structures are set out in Appendix Two.
• The procedures for the enforcement of employment rights can be complex and confusing. For example, an employee may have very little information on which to make a decision as to whether to refer an unfair dismissal case to a Rights Commissioner or proceed directly to the Employment Appeals Tribunal.
• There is no legal aid for Employment Appeals Tribunal cases. Although there has been a view that the Tribunal should be kept free of legal representation and should be informal, the reality of employment legislation has given a different outcome. A great deal of employment legislation is complex and requires specialist advice. This may be reflected in the fact that, in 1998, just over 87% of employees were represented, the majority by lawyers. Nearly 65% of employers were represented, again the majority by lawyers. However the experience of CICs suggests that this is not the full picture from the employee perspective. While the number of employees represented at the Tribunal is relatively high, the CICs record a high number of employees who have felt unable to enforce their rights due to the fact that detailed legal advice and representation is unavailable. Thus the grievances of many employees go unrecorded because they are prevented from getting as far as referring their cases to the Rights Commissioner Service or the Employment Appeals Tribunal.
• Awards made under employment protection legislation may not be recovered if the employer company does not go into liquidation, but ceases to trade.

Where a company fails to comply with a court order under employment legislation and it has gone into either voluntary or compulsory liquidation application may be made for payment of the outstanding award by the Insolvency Fund established under the Protection of Employees (Employers' Insolvency) Act 1984. However this will not cover a situation where a company has become "informally" insolvent as the following case study illustrates.

An employee had been awarded £400 compensation under the Payment of Wages Act 1991 and £3,600 under the unfair dismissals legislation. The employer neither paid the awards nor were they the subject of an appeal. As a result enforcement proceedings were heard in the Circuit Court. The employer did not attend the hearing and was not legally represented. Subsequently it was discovered that the company was one of a small number of companies with similar names. While the particular company involved in the enforcement proceedings had ceased to trade, another company in the group had taken up its activities. Although the Circuit Court orders were served on the company there was no response. At this stage the employee could not seek payment of the awards from the Insolvency Fund as the company had not gone into liquidation. In addition as the awards were against one particular company, there was no prospect of proceeding against any of the other companies. Eventually the employer offered to pay half of the total amount of the awards stressing that he did not consider that he was legally obliged to make this offer but he wanted to get rid of the matter. The employee had little choice but to accept the offer.

Proposals

• Sufficient resources to ensure compliance with employment protection legislation need to be made available. The number of inspectors in the Department of Enterprise, Trade and Employment needs to be increased substantially. The 1999 complement of just ten inspectors is clearly inadequate to enforce the entire range of employment legislation. While the additional seven appointments approved by the Government is to be welcomed, this staff increase must be put in the context of considerable extra demands on the Inspectorate due to the National Minimum Wage Act 2000.
• There is a need for much greater co-ordination in the area of inspection. The question of an overriding employment inspectorate, integrating and expanding existing roles, should be examined. The overall objective should be to ensure that, when an employment premises is visited by a public official, compliance with all aspects of the law is considered including employment protection legislation, tax and social welfare. Such inspections could be backed up with specific expertise, where appropriate, for example, in regard to technical matters arising from health and safety issues.
• There needs to be a standarisation of procedures concerning referrals of employment rights cases. For example, in line with the trend of recent legislation, there is case for providing that all such cases should be initiated before the Rights Commissioner Service.
• There is a need for the institutions involved in enforcement to have regional offices to ensure greater accessibility for citizens to their services.
• Given the already increasing role of the Rights Commissioner Service, there is a need to review the likely future development and requirements of the service. This is given added significance in view of the fact the National Minimum Wage Act 2000 requires the involvement of the service in disputes arising from that legislation. The service is now in a much more pivotal position in terms of employment protection measures than could have been envisaged in the service's original industrial relations brief.
• The protection of the Insolvency Fund should be extended to cover "informal" insolvencies or an alternative method should be introduced of forcing an insolvency where a company ceases trading. Under existing procedures the cost of forcing compulsory liquidation in the High Court is prohibitive and beyond the means of an employee who has obtained an average compensatory award from the Employment Appeals Tribunal.
• Legal Advice/Aid needs to be made available for Employment Appeals Tribunal cases subject to the normal criteria of compliance with the means test, a reasonable case, and no other means of obtaining legal assistance (e.g. through trade union membership)

Chapter 3 - SPECIFIC EMPLOYMENT ISSUES

1. HOLIDAYS

1.1 Summary of legislation

All employees, full-time, part-time, temporary or casual have an entitlement to paid annual leave. The actual amount of an employee's leave entitlement is based on his/hers hours of employment during the "leave year" that runs officially from April to March, although some employers operate a calendar year system. The basic leave entitlement allowed for in the legislation is four weeks, although an individual contract may allow for a longer leave period. The time at which leave may be taken is a matter for the employer, but, under the legislation, regard must be had to the need for employees to reconcile work with family commitments, and the opportunities for rest and recreation available to employees. There is also a requirement for employers to consult with employees before the time for taking annual leave is finalised.

In addition to annual leave employees are also entitled to paid time off for public holidays or one of a range of alternatives set out in the legislation. Part-time or casual staff must have worked a set minimum number of hours immediately before a particular public holiday in order to be entitled to avail of the legislation.

1.2 Background

The total number of referrals under the Organisation of Working Time Act 1997 to the Rights Commissioner Service in 1999 was 526 compared with 395 in 1998. In 1998, 64% of cases were decided in favour of the claimant. This totals include matters other than holiday entitlements, but, for example in 1998, just under a quarter of the disputes related to holiday pay.

Of the 82,069 calls in 1999 to the Employment Rights Information Unit of the Department of Enterprise, Trade and Employment 33% (27,131) were in relation to holidays. This represented the biggest single category of inquiries.

The above statistics are also reflected in the experience of Citizens Information Centres, where queries in connection with holiday entitlements represent a major part of their employment rights work.

1.3 Issues

The level of queries concerning leave (both annual and public holiday) points to a clear information deficit about entitlements in this area. This situation has been exacerbated by a lack of information, leading to confusion, in regard to the changes introduced by the Organisation of Working Time Act 1997.

A fully trained panel beater in his early 30s commenced employment in February 1998. He was working long hours including week-ends and public holidays. His employer told him that he was not entitled to annual leave during 1998 due to the fact that he only started work in February. During 1999 he again sought annual leave and was informed that he would have to wait, and that he was only entitled to 10 days leave based on a calculation (inaccurate) by the employer under repealed 1973 legislation. The employee gave his employer information on the latest relevant legislation on two occasions but each time was told that the firm's accountant had said that the legislation did not apply. Having failed to get satisfaction from his employer, the employee was faced with the alternative of referring the matter to a Rights Commissioner or dropping the matter altogether.

The lack of information about entitlements appears to affect part-time employees in particular. Even part-time employees with a good record of continuous employment may not receive the most basic entitlement to paid leave.

A female employee was working under 20 hours per week with three years service. During this time she had never received paid leave for annual or public holidays. Even when informed by her local CIC of her entitlements concerning paid leave, she indicated that she would not take action for fear of the possible repercussions in her workplace.

Even where the existence of annual / public holiday leave entitlement is accepted by the employer, it may become, all to easily, incorrectly mixed up with other quite separate leave entitlements, such as maternity leave or sick leave.

A male employee in his late 20s was out of work due to illness for a month. During the period of his sickness he supplied his employer with the necessary medical certificates. When he returned to work, his employer informed him that he had used up all his annual leave while out sick, and would have to recommence accumulating the necessary working hours to establish further entitlement. It also transpired that the employer was still calculating annual leave entitlement under the Holidays (Employees) Act 1973, even though the Organisation of Working Time Act 1997 had been in operation, at that stage, for more than a year. The employee could refer the matter to a Rights Commissioner, however given that he had less than one year's service in the employment he might risk dismissal and have no redress under the unfair dismissals legislation.

Seeking to enforce annual leave and public holiday entitlements presents a particular problem. As can be seen from the case-study on p.19 involving the female employee with three years service, the employee concerned even though she had sufficient service to have the protection of the unfair dismissals legislation was still fearful of taking action against a recalcitrant employer. Employees, with less than a year's service and therefore, generally, outside the protection of the unfair dismissals legislation, are even less likely to seek to enforce holiday entitlements. For example, an employee with six months service may, understandably, be reluctant to risk dismissal by taking action against an employer who refuses to grant a day's pay in lieu of a public holiday.

Proposals

The Department of Trade, Enterprise and Employment, in conjunction with the social partners and information services, should conduct an information campaign to disseminate the details of the relevant legislation to both employees and employers.

An amendment to the Unfair Dismissals Acts 1977 -93 is required to remove the one year's service requirement in cases where an employee is dismissed for seeking to avail of or enforce employment legislation, including annual / public holiday entitlement

References

Organisation of Working Time Act 1997 Part III;

Section 19 Entitlement to annual leave;

Section 20 Times and pay for annual leave;

Section 21 Entitlement to public holidays;

Section 22 Public Holidays;

Section 23 Compensation on cesser of employment;

Second Schedule Public Holidays;

Third Schedule Entitlement under S.21 in respect of public holidays -

exceptions;

Organisation of Working Time (Determination of pay for holidays) Regulations 1997. SI. 475/97;

Organisation of Working Time Directive 93/104/EC - Article 7: Annual Leave.

2. PART-TIME EMPLOYEES

2.1 Summary of legislation

The Worker Protection (Regular Part-time Employees) Act 1991 extended the protection of legislation dealing with unfair dismissals, redundancy, employer insolvency and notice to "regular part-time employees". The term "regular part-time employees" covers those employees who have worked for an employer for at leas t 13 weeks and are normally expected to work at least 8 hours a week.. Of course, such employees must fulfil any service requirements under relevant legislation, for example, two years is the requisite service under the Redundancy Acts.

When considering the position of part-time employees it must also be remembered that certain legislation may be availed of by employees regardless of the amount of hours worked in a week, or length of service. For example, the Maternity Protection Act 1994, and the Payment of Wages Act 1991 fall into this category.

The Parental Leave Act 1998, on the other hand, requires a minimum period of employment (normally one year) but not a minimum working week. The Terms of Employment (Information) Act 1994 by contrast applies to employees working at least 8 hours per week with one month's service.

2.2 Background

In 1998, 47 claims under the Worker Protection (Regular Part-Time Employees) Act 1991 were referred to the Employment Appeals Tribunal compared with 61 in 1997. The issue in such cases before the Tribunal is whether the employee is a regular part-time employee or not. The Tribunal disposed of 54 claims in 1998, of which 13 were dismissed, 29 were withdrawn during hearing and 12 were withdrawn prior to hearing.

An EU Directive on part-time work is due to be implemented in Ireland by January 2001. The Directive sets out the general principles and minimum requirements relating to part-time work. For example, the Directive states that:

• Part-time workers shall not be treated less favourably than comparable full-time workers solely because they work part-time unless the different treatment is justified on objective grounds.
• A worker's refusal to transfer from full-time to part-time work or vice-versa should not of itself constitute a valid reason for termination of employment, though this is without prejudice to certain matters including reasons which may arise "from the operational requirements of the establishment concerned".
• As far as possible, employers are:
• to give consideration to employee requests to transfer from full-time to part-time work or vice-versa;
• provide "timely information" on part-time and full-time positions in the workplace.

2.3 Issues

A major difficulty in this area is the widespread confusion amongst employers and employees as to the definition and rights of a "part-time employee". This is hardly surprising given the fact that there is no uniform legislative approach to part-time work. The confusion that can arise may be illustrated by the example of an employee working 20 hours per week. The general perception is that such an employee is part-time and may have limited or even no rights under employment protection legislation. However in reality such an employee is covered by all current legislation subject to fulfilling any relevant length of service requirements. The confusion affects both employees and employers and leads to unnecessary conflict, the results of which are well illustrated in the following case study.

A female employee in her 40s, worked for nine years as a cleaner, with a 12 hour working week. She had only received two working weeks unpaid annual leave per year during the course of her employment. When she pointed out to her employer that she was entitled to additional leave and to be paid while on leave, her employer insisted that she was getting her rightful entitlement. The employee took the annual leave on offer under protest, but decided to leave the job because of her employer's attitude. Subsequently she found out that, in any event, her position had been offered to another person while she was on her annual leave. The employee decided however not to pursue the matter further.

2.4 Proposals

• There is a need for information concerning part-time employees' rights to be targeted at industries that traditionally use such employees. Basic information could, for example, be supplied along with other documentation from the Revenue Commissioners to identified part-time workers.
• As far as possible our legislation should move towards a unified approach to part-time employees and be based on the principle that, in general, all employment protection measures should apply to all employees, regardless of hours worked.
  
• Part-time employees are often non-unionised and most vulnerable to a denial of even the most basic of employment rights and hence sufficient resources need to be made available to the relevant authorities to ensure adequate inspection of work places regularly using such employees.

3. CONTRACT OF EMPLOYMENT

3.1 Summary of legislation

There is no statutory provision requiring an employer to provide an employee with a written contract of employment. The Terms of Employment (Information) Act 1994 obliges an employer to give an employee a written statement of particular identified terms of the contract. The relevant terms include job title / nature of work, pay and pay intervals, hours of work and sick pay (if any). In addition employers of persons under 18 are required to give such employees the official summary of the legislation regarding the employment of children and young people.

3.2 Background

The total number of referrals to the Rights Commissioner Service in 1999 in connection with the Terms of Employment (Information) Act 1994 was 199 (compared with 54 in 1998).

In 1998 the Employment Appeals Tribunal received nine appeals from Rights Commissioner determinations involving the Terms of Employment (Information) Act 1994, compared with four in 1997.

3.3 Issues

The overall evidence of employment queries received by CICs suggests that a sizeable proportion of employees are not supplied with even the minimum written statement required by the legislation. There are, however, considerable advantages to be gained from ensuring that employers provide employees with this statement. The failure to comply with the legislation undoubtedly leads to disputes within workplaces, which might otherwise have been avoided. The formal clarifying of the basic terms of the contract helps avoid disputes and unnecessary referrals to the Rights Commissioner Service / Employment Appeals Tribunal.

A female employee, in her late 20s, was employed in a veterinary practice for a year and a half. Her job, along with one other colleague, was to compile test results for clients. When her colleague left, she was expected to do twice the work. Her repeated requests for help were ignored and she received verbal abuse from the employer when the work fell behind schedule. She had no written contract, nor the written statement of the particular terms of her employment required by law. As a result she had no written statement of, for example, her job description, her hours, overtime pay, or any grievance procedure. Eventually unable to tolerate the situation any longer she left the employment. The only option then open to the employee in relation to the loss of her job was to seek advice on bringing a claim for "constructive dismissal" under the unfair dismissals legislation arguing that she had been forced to leave the employment due to the employer's behaviour.

Even in employments where a written contract exists, employers may seek to introduce unilateral changes into the contract. Employees in such situations may be presented with the choice of accepting the change, leaving the employment of their own accord or being dismissed.

A female employee, with seven years continuous service, was offered a new contract containing unfavourable changes in her conditions of employment. These changes included a major reduction in her pay. When the employee sought to discuss these changes with her employer, an argument resulted and she was immediately dismissed. After receiving information from her local CIC the employee was considering her option of making a claim for unfair dismissal.

An employee is entitled to a written statement of the terms of employment specified in the legislation within one month of starting the employment. However in many instances it is unlikely that a new employee will seek to enforce this right, given that, as a result, s/he may face the risk of dismissal before being able to avail of the protection of the unfair dismissals legislation.

Proposals

In view of the considerable advantages to be gained from ensuring that employers provide employees with the written statement of terms required by the legislation, the Department of Enterprise, Trade and Employment should initiate a campaign to encourage compliance with the law. In addition, if necessary, sanctions should be applied to employers in continuous breach of the legislative provisions. At present the onus is on individual employees to enforce their rights under the legislation. Given the State's interest in ensuring compliance, the legislation should be amended to allow the prosecution of employers in default of their statutory obligations.

There is a need for an amendment to the Unfair Dismissals Acts 1977 - 93 to remove the one year's service requirement in cases where an employee is dismissed for seeking to avail of or enforce employment legislation, including compliance with the Terms of Employment (Information) Act 1994.

References

Terms of Employment (Information) Act 1994;

Section 2 - Exclusion of employee working less than 8 hours per week;

Section 3 - Terms to be provided in writing;

Section 5 - Notification of changes;

Section 7 - Complaints concerning contravention of the Act;

Terms of Employment (Additional Information) Order 1998 SI 49/1998 - requires written information concerning Organisation of Working Time Act 1997;

Terms of Employment (Information) Act 1994 (Sec.3(6)) Order 1997 SI 4/1997 - requires provision of information concerning employment of children / young persons.

4. WAGES

4.1 Summary of legislation

A national minimum wage came into force in April 2000.

Currently a range of employees in traditionally low pay occupations are covered by Joint Labour Committees that set minimum pay and conditions for sectors such as hotels, clothing manufacture, agriculture etc.

The other key legislation in this area, the Payment of Wages Act 1991, covers the method of payment, and the right to receive a wage slip setting out the gross pay and listing any deductions. The legislation also regulates deductions from wages for losses arising from an employee's conduct or omissions, and sets out the procedures required of employers to ensure such deductions are lawful.

4.2 Background

The total number of referrals in 1999 to the Rights Commissioner Service under the Payment of Wages Act 1991 was 739 (compared with 507 in 1998). It was the second highest category of referral to the service. In 1998. the Rights Commissioners found in favour of the claimant in 63% of cases. Of the cases decided in favour of the claimant 77% received monetary compensation, the average award being £555.

In 1998 the Employment Appeals Tribunal received 21 appeals from Rights Commissioner decisions under the Payment of Wages Act 1991, compared with 17 in 1997. Of the 17 appeals disposed of by the Tribunal in 1998, the Rights Commissioner determination was upheld in five cases and varied in one. The remaining 11 appeals were withdrawn.

In 1999 inquiries concerning wages made up 9% of the calls received by the Employment Rights Information Unit of the Department of Enterprise, Trade and Employment.

Although the Payment of Wages Act 1991 provides for the prosecution of employers who, for example, fail to provide a wage slip, prosecutions under the legislation are extremely rare.

4.3 Issues

On the evidence of queries received by CICs, the indications are that many employees do not receive a wage slip at all or at least not on a regular basis.

An employee working in a crèche, she had received pay slips for a short period after she started work. However the practice had then stopped without any explanation and it was now six months since her last pay slip. The employee was very concerned as to whether her PRSI and PAYE deductions were being passed on to the relevant authorities, and reluctant to raise the matter directly with her employer for fear of losing her job.

There is a lack of information about the legal requirements in relation to deductions from wages for shortages or breakages.

A petrol pump attendant had money deducted from his wages if a customer drove away from the station without paying. The employee had no written contract of employment, and had not received the required written notice of the existence of a term in his contract that deductions could be made. In addition the employee had not received the required notice, at least one week in advance, of the details of the deduction and the reasons for it. The employee believed that some of the deductions were in excess of the loss suffered by the employer.

The employee was fearful of taking any action concerning the deductions, because he needed the work and was worried about the possible repercussions of taking action.

4.4 Proposals

One method of disseminating information on these matters would be for the Revenue Commissioners to include details of the legislation in standard literature sent to employers and employees.

Amendment to the Unfair Dismissals Acts to remove the one year's service requirement in cases where an employee is dismissed for seeking to avail of or enforce employment legislation, including compliance with the Payment of Wages Act 1991.

4.5 References

National Minimum Wage Act 2000;

Payment of Wages Act 1991;

Industrial Relations Acts 1946 - 1990 - Joint Labour Committees.

5. DISMISSAL

5.1 Summary of legislation

Generally the Unfair Dismissals Acts 1977-93 offer redress to employees in situations of unfair dismissal provided their working week is normally at least 8 hours and they have at least 52 weeks continuous service with the employer. These general requirements do not apply in the case of employees whose dismissal arises from any of the following, (a) trade union activity, (b) pregnancy related issues (c) exercising rights in relation to maternity / adoptive leave (d) parental leave / force majeure leave or (e) seeking national minimum wage entitlements. Normally once dismissal is established, the onus is on the employer to justify the dismissal. Dismissal on certain grounds is deemed to be unfair under the legislation, these grounds include dismissal for religious belief, race and colour.

Where an employee is found to have been unfairly dismissed, s/he may be awarded compensation for loss incurred in the dismissal or may be ordered to be reinstated or re-engaged in his/her job.

An employee who is dismissed and does not have the required service to bring a claim under the unfair dismissals legislation (and whose case does not come within one of the exceptions mentioned above) may refer the matter to a Rights Commissioner under the industrial relations legislation. However the Rights Commissioner cannot hold a hearing into the dispute under this legislation unless the employer agrees to attend. Furthermore even where a hearing takes place, any resulting recommendation of the Rights Commissioner in favour of the employee is non-enforceable.

The Employment Equality Act 1998 provides for the bringing of claims in relation to dismissal on any of prohibited grounds of discrimination listed in the Act ( or in circumstances of victimisation).

5.2 Background

The total number of referrals to the Rights Commissioner Service in 1999 under the Unfair Dismissals Acts 1977 -93 was 335 (compared with 324 in 1998). In 1998, 60% of cases found in favour of the employee and 19% against the employee, the balance were either withdrawn or settled. Of the cases where the employee was successful, just 6% involved re-instated, while the balance were awarded monetary compensation, the average award being £1,091. Actual amounts awarded ranged between £100 and £12,500.

Of the 951 referrals to the Rights Commissioner Service under the Industrial Relations Acts 1969 -90 just over 40% were in connection with alleged unfair dismissal.

The number of claims under the unfair dismissals legislation received by the Employment Appeals Tribunal in 1998 was 939, including appeals against Rights Commissioner decisions.

Apart from appeals against Rights Commissioner decisions, the Tribunal disposed of 909 unfair dismissal claims in 1998, of which, 156 were allowed, 121 were dismissed, and 459 were withdrawn during the hearing and 173 were withdrawn prior to hearing. The average award to employees was just over £4,000 compared with just under £3,500 in 1997, and 21 employees were awarded re-instatement / re-engagement.

The Employment Rights Information Unit of the Department of Enterprise, Trade and Employment in 1999 received 4,102 queries in relation to dismissals, or 5% of the total number of calls.

5.3 Issues

Unless an employee can bring his/her case within one of the exceptions, the employee has no substantive protection against unfair dismissal during the first year of employment. Although such an employee may seek to bring a case to a Rights Commissioner under the industrial relations legislation, as we have seen the employer must consent to a hearing and any recommendation by the Rights Commissioner in the employee's favour is unenforceable. This lack of protection during the first year of employment is open to abuse by employers who may employ people for a period of just short of the year and then dismiss them without having to justify the decision or face any legal sanction.

The experience of CICs is that many employees feel unable to seek entitlements due to the fear of dismissal. If an employment relationship is going to be based on compliance with employment protection legislation, the early days of the relationship are critical. If during this period an employee feels insecure in requesting even the most basic of entitlements, such as a wage slip, then the situation is unlikely to improve in the future. As a result many employees become locked into a culture where non-compliance with statutory entitlements is the norm. Such employees, for example, have little choice but to accept the lack of written terms of employment, no wage slips, and the absence of proper leave entitlements because that is the way it has always been. CICs can provide information on entitlements and options, but very often the most vulnerable employees do not feel in a position to enforce those rights.

A female production employee was employed for 6 months. She had missed five days during this period, made up of three days certified sick leave, one day authorised leave to attend funeral of a relative and one further day of sick leave of which the employer had been notified as required. The employee was dismissed due to her absences from work, she had received no warnings, nor was she given any opportunity to state her case. As she was employed for less than one year she was unable to avail of the protection given by the Unfair Dismissals Acts.

A female employee was working with a catering firm. She had been given a written contract of employment for a term of three months which included a grievance procedure. Within the period of her employment she attempted to invoke the grievance procedure to resolve a dispute with her supervisor. Her employer refused to renew her contract after three month, and she was told that she should not have used the grievance procedure against her supervisor. A Rights Commissioner hearing held that this was the real reason for the dismissal and not an allegation, by the employer, concerning the quality of her work. However as the employee had less than one year's service and brought her claim under the industrial relations legislation procedures, no enforceable award could be made by the Rights Commissioner in the employee's favour.

Dismissal following the change of ownership of a business and the refusal of the new owner to accept that the employees concerned have any employment rights.

The ownership of a business changed. Two weeks after the change the new employer dismissed two employees who each had nine years service with the firm. The employer asserted incorrectly that he had no obligations toward the employees including any requirement to give notice or to provide outstanding holiday pay. The employees concerned referred their case to the Employment Appeals Tribunal. It is worth noting that the employees were of the opinion that the fact that they lived outside Dublin made it particularly difficult for them to obtain the necessary information on the referral procedures.

5.4 Proposals

A significant gap in the existing legislative protection against unfair dismissal arises from the fact that an employee with less than one year's service could be dismissed for seeking even the most basic of employment entitlements, and have no redress, for example, an employee who after a couple of months in a job requests a wage slip as a record of PAYE / PRSI deductions.

This problem has been addressed in certain employment legislation by giving all employees who seek to enforce rights protection against unfair dismissals regardless of length of service. Examples of such employment legislation include the Maternity Protection Act 1994 and most recently the National Minimum Wage Act 2000. Section 35 of the latter Act states that an employee is not to be prejudiced by exercising a right under the Act. In addition the protection of the Unfair Dismissals Acts will be available to all employees regardless of length of service (or number of hours worked) in the event of a dismissal arising from such an exercise of rights.

In the UK and Northern Ireland, this gap has been filled by a legislative provision that the dismissal of any employee, irrespective of length of service or hours, will be automatically unfair where the tribunal finds that the reason, or principal reason, for the dismissal was that the employee brought proceedings against the employer to enforce a statutory right or alleged that the employer had infringed such a right. This applies even if the employee was not entitled to the right in question, provided the employee acted in good faith.

In order to make employment protection legislation a reality for all employees, the general concept of protection from dismissal for seeking to enforce a statutory right regardless of length of service, as already accepted in certain of our legislation, needs to be extended to embrace all aspects of employment legislation.

5.5 References

Unfair Dismissals Act 1977;

Unfair Dismissals (Amendment) Act 1993;

Employment Equality Act 1998;

Industrial Relations Acts 1969 - 90.

6. SAFETY, HEALTH AND WELFARE / WORKING TIME / HARASSMENT

6.1 Summary of legislation

Safety, Health and Welfare: The legislation is particularly concerned with the prevention of accidents and injury in the workplace by the identification of hazards and the introduction of appropriate safeguards. The legislation requires every employer to draw up a safety statement that should identify hazards faced by the employees. The statement should also set out the arrangements to safeguard safety / health and provide the names of those people with responsibility for safety and health in the workplace. There are particular regulations dealing with the safety and health of pregnant employees and children / young persons.

Working Hours: The Organisation of Working Time Act 1997 sets out the maximum working hours of employees in addition to minimum breaks and rest periods.

Harassment: Employers have a duty to provide a safe system of work. This includes taking appropriate steps to ensure that harassment or bullying does not occur. Where despite such efforts harassment / bullying does occur, there should be proper procedures in place to deal effectively with the situation. The Employment Equality Act 1998 prohibits discrimination by sexual harassment perpetrated by fellow employees, employers or clients / customers / business contacts of the employer. There is a similar prohibition on harassment arising from the other discriminatory grounds prohibited by the Act, i.e. age, race, religion, disability, sexual orientation, marital status, family status, or membership of the Traveller community.

6.2 Background

The Health and Safety Authority Annual Report 1999 indicates that just 38% of employers with less than 12 employees inspected had a safety statement prepared. The level of compliance within particular employment sectors varied, for example, in the agricultural sector the level of compliance was just over 13%, while in retail services the corresponding figure was just under 35%.

Pregnant employees (or, for example, employees who have recently given birth or who are breastfeeding) who are prevented from working due to health and safety reasons, after three weeks on normal pay, may claim Health and Safety Benefit from the Department of Social, Community, and Family Affairs. In 1998 there were just 18 recipients of this benefit compared with 24 in 1997.

6.3 Issues

CICs have recorded a significant lack of response by employers to the identification of hazards and the production of safety statements. It is a cause of concern that this is particularly the case for pregnant employees. For this latter group of employees enforcing the available statutory protection can be a difficult process. A pregnant employee may spend many weeks attempting to establish that, due to her condition, a particular risk exists in the workplace. Any agreement as to the existence of such a risk may be followed by a lengthy debate concerning possible alternative duties that would avoid the risk. Failure to resolve any of these issues may lead to the Health and Safety Authority being contacted to carry out an inspection and make recommendations. The employee may then face difficulties with her employer over the interpretation and implementation of any such recommendations, causing even further delay. By this point the employee may be so concerned about her situation that she leaves the job or takes certified sick leave. Alternatively the commencement of maternity leave may intervene before the matter has been resolved.

A female employee had made repeated requests for a change in her duties while she was pregnant. She worked in an institution and her duties included lifting immobile patients. The initial response of her supervisor was that the request was a joke. A subsequent Health and Safety Authority inspection lead to the making of a number of recommendations to deal with the situation. However the institution ignored the recommendations and there was no change in the employee's duties during the pregnancy.

Following the birth of the child, the employee had a reoccurrence of a back complaint. Her doctor wrote to the employer requesting that she be given lighter duties. The response of the employer was to move her to kitchen duties where the work still consisted of lifting heavy loads. The employee was of the strong opinion that lighter duties were available for her, and cited one of her fellow employees who was prepared to switch duties with her. The employee is considering referring her case to a Rights Commissioner under the maternity protection legislation.

Harassment or bullying at work is often not treated with the seriousness and alacrity it requires. A lack of adequate procedures within the workplace for handling such issues may force even employees with long service to quit their jobs rather than continue in intolerable situations. Although a constructive dismissal claim may be an option, such a course of action is likely to be a very stressful for the employee concerned, and one that many employees may be very reluctant to take up.

An employee had been working for 12 years with a large organisation. She considered that her supervisor was singling her out for greater attention and harassment. In addition the supervisor had told her that she was being watched. After this situation had continued for some time, the employee felt that she could not cope with it any longer, and offered her resignation. The manager of the firm discussed the matter with her. He concluded that although the allegations were serious, he did not feel in a position to investigate the claims because of the difficulty such action would cause with the supervisor. The employee left the employment immediately after this response and did not feel that she could pursue the matter further.

6.4 Proposals

Generally there is a need for much greater awareness amongst all employers of the need to respond to health and safety issues particularly concerning pregnant employees. There is a need, not only, for the dissemination of appropriate information, but also for adequate enforcement of the requirement for all employers to have a safety statement. Ensuring the provision of a safety statement in all workplaces should be the first priority in order to put in place proper procedures. If, however, there are continuing health and safety problems the relevant authorities need to have the resources available to ensure effective enforcement of the legislation.

The low level of take up Health and Safety Benefit may reflect various factors including the difficulty and / or delay employees may have in establishing the existence of a risk. However another factor may be that the Benefit is only paid at a rate equal to standard Disability Benefit (£77.50 per week 2000 /2001 rates). As a result, apart from the first three weeks when the woman is entitled to receive her normal wages, a pregnant employee, prevented from working for health and safety reasons, will in most instances suffer a considerable loss of income. This may be forcing pregnant employees to accept compromises on health and safety in order to maintain their level of income. Consideration should be given to bringing the payment into line with Maternity Benefit which is paid at a rate of 70% of gross earnings subject to a set minimum and a maximum rate.

6.5 References

Safety, Health and Welfare at Work Act 1989;

Factories Act 1955;

Safety in Industry Act 1980;

Mines & Quarries Act 1965;

Maternity Protection Act 1994;

Safety, Health and Welfare at Work (Pregnant Employees) Regulations SI 446 1994;

Safety, Health and Welfare at Work (Children & Young Persons) Regulations SI 504 1998;

Safety, Health and Welfare at Work (General Application) Regulations SI 44 1993;

Organisation of Working Time Act 1997;

Employment Equality Act 1998.

7. MATERNITY / PARENTAL LEAVE / FORCE MAJEURE LEAVE

7.1 Summary of legislation

Maternity Leave - Legislation provides for a basic period of 14 weeks leave, the right to return to work following the leave, and paid time off for ante / post natal clinic visits. In addition it establishes various safeguards for pregnant employees (and, for example, those who have recently given birth or who are breastfeeding) concerning health and safety in the workplace.

Parental Leave - Legislation provides for employees both male and female to be given 14 weeks unpaid leave to allow them to care for their children aged, generally under 5 years of age. The leave can be taken in one period or with the consent of the employer in stages.

Force Majeure Leave - Legislation provides for employees to take 3 days paid leave in any 12 month period (to a maximum of 5 days in any 36 month period) where a close relative is seriously ill and the employee's immediate presence is absolutely essential.

7.2 Background

In 1999 there were 18 referrals to the Rights Commissioner service under the Maternity Protection Act 1994, compared with 17 in 1998. The number of referrals under the Parental Leave Act 1998 was 57.

In 1998, the Employment Appeals Tribunal received 36 claims under the Maternity Protection Act 1994. This total included two appeals against Rights Commissioner recommendations with the balance being received directly in conjunction with unfair dismissal claims. Of the 37 cases disposed of by the Tribunal in conjunction with unfair dismissal claims, one was allowed, eight were dismissed, 21 were withdrawn during the hearing and seven were withdrawn prior to hearing. Of the two appeals against Rights Commissioner recommendations, one was upheld and one was withdrawn.

Two per cent of the calls in 1999 to the Employment Rights Unit in the Department of Enterprise, Trade and Employment related to maternity issues.

The Programme for Prosperity & Fairness includes a commitment to complete a review of the maternity protection legislation by September 2000. In addition a review of the operation of the Parental Leave Act, 1998 will take place in 2001.

7.3 Issues

CICs recorded very basic entitlements under the Maternity Protection Act 1994 being denied to employees.

An employee informed her employer that she was pregnant and sought to avail of her statutory entitlement to paid time-off to attend her ante natal clinic appointment. Her employer immediately dismissed her, and she lodged a claim for unfair dismissal.

Although pregnant employees may not be directly dismissed due to pregnancy, pressure may be brought to bear on the employee by making the situation at work so intolerable that the employee feels she has no alternative but to quit the job.

A female employee had been working part-time for her employer for two years. Her employer appeared satisfied with her work and offered her a full-time position subject to a six month probationary period. The employee accepted, but informed her supervisor one month later that she was pregnant. Her employer cut the probationary period to three months and made her situation intolerable due to bullying. She left the employment before the end of her probationary period, and decided not to pursue the matter.

An employee may find herself unable to claim Maternity Benefit due to an unexpected change in her employment situation

A female employee was made redundant and had to leave her employment just over three months before her baby was due. As she was not employed at the date her maternity leave had been due to commence she was unable to claim Maternity Benefit. This was the case even though she had sufficient social welfare contributions to satisfy the requirements of the legislation in that regard. In addition due to the advanced nature of her pregnancy she was not in a position to seek new employment before the birth

A recent Rights Commissioner decision concerning parental leave has established that where an employer refuses to give consent for the leave to be taken in stages a Rights Commissioner has no authority to determine that the leave will be taken otherwise than in one period. This considerably weakens the legislation.

7.4 Proposals

Information concerning the principal features of the Maternity Protection Act 1994, such as the right to maternity leave and the right to return to work, appears to be reasonably widely available. However the queries being received by CICs would suggest that there is still a significant lack of information concerning entitlement to paid ante / post natal leave and the position concerning annual leave / public holidays while on maternity leave. The co-ordinated dissemination of information on these issues should be a priority for State agencies, employer organisations, trade unions and information providers.

Dismissal as a result of pregnancy, or claiming a related entitlement, continues to be recorded by CICs. Ultimately such practices will only be eliminated by accessible and effective enforcement procedures against those employers who fail to comply with the law.

At present, in order to qualify for Maternity Benefit, a woman must be in employment which is covered by the Maternity Protection Act 1994 immediately before the first day of her maternity leave (the last day of insurable employment may be within 10 weeks of the expected date of the birth of the baby). Consideration should be given to allowing some relaxation of this requirement in cases where a woman was employed up to shortly before her leave was due to commence and would otherwise fulfill the contribution conditions for payment of benefit. For example women who have been employed up to 20 weeks before the date of birth and who fulfill the contributions requirements could be allowed claim maternity benefit.

The Parental Leave Act 1998 should be amended to allow for a Rights Commissioner / Employment Appeals Tribunal to determine that the leave may be taken in separate periods where an employer is found to be acting unreasonably by insisting that it be taken in one period.

7.5 References

Maternity Protection Act 1994;

Parental Leave Act 1998;

Maternity Protection (Disputes & Appeals) Regulations SI 17 1995;

Parental Leave (Disputes & Appeals) regulations SI 6 1999;

Maternity Protection (Time Off for Ante Natal & Post Natal Care) Regulations SI 18 1995;

Parental Leave Directive 96/34 EC - 3/6/96;

Maternity Protection Directive 92/85 EEC - 19/10/92.

8. EMPLOYMENT OF CHILDREN AND YOUNG PERSONS

8.1 Summary

The legislation broadly prohibits the employment of children under 16 (or the school leaving age, whichever is higher) apart from work sanctioned by the Minister for Enterprise, Trade and Employment or light work during school holidays. With regard to the employment of young people (i.e. currently aged 16 - 18) the legislation allows employment but subject to controls as to the working times and total working hours.

The legislation prohibits double employment where the total hours worked would breach the set maximum. A parent or guardian who aids and abets an employer to contravene this aspect of the legislation is liable to prosecution.

The legislation also sets out requirements to be fulfilled by employers concerning, for example, informing employees about the legislation, the verification of the age of a child / young person, obtaining parental / guardian consent (in the case of a child only), and the keeping of records as to hours worked.

There are special provisions covering health and safety for children / young persons at work. These include the provision that if the work involves risks of accidents that it may be assumed the child / young person would not recognise owing to lack of experience then the child / young person should not be employed at such work.

8.2 Background

There were 17 referrals under the Protection of Young Persons (Employment) Act 1996 to the Rights Commissioner Service in 1999, compared with 12 in 1998.

A total of 1,682 (2%) of the calls to the Employment Rights Information Unit of the Department of Enterprise, Trade and Employment in 1999 related to the 1996 Act.

The Central Statistics Office Bulletin (December 1999) shows that in the period March - May 1999 33% of males aged 15-19 were in the labour force with an equivalent figure for females of just under 25%.

In 1999 there were a total of 1,114 inspections for conformity with the Protection of Young Persons (Employment) Act 1996 carried out by the Labour Inspectorate of the Department of Enterprise, Trade & Employment. This figure included 124 inspections conducted in late 1999 as part of a night time campaign by the Inspectorate targeted exclusively on enforcement of the 1996 Act in the pub, hotels and catering sectors in Dublin and Cork. Such inspection work resulted in 14 cases being prepared for referral to the Chief State Solicitor's Office for the institution of legal proceedings against employers found in breach of the 1996 Act.

In 1999 Ireland ratified the International Labour Organisation (ILO) Convention concerning the Elimination of the Worst Forms of Child Labour. The convention includes a prohibition on employment of children in work which is likely to harm their health, safety or morals.

The Irish Congress of Trade Unions recently commissioned a national survey of the experiences and attitudes of Leaving Certificate pupils in regard to employment. This showed that the percentage of students currently working in ‘sixth year' was 51%. This was only marginally lower than the percentage in ‘fifth year' at 53%. With regard to the conditions and terms of work the survey found the following:

On average male students worked 20 hours per week and females 16 hours per week. The bulk of the hours worked were at weekends, 72% for males and just under 78% for females. Just under 14% of hours were worked after 2200 hrs, mainly on Friday nights, but also significantly during the rest of the school week.

On average students worked up to four hours without a break of at least ½ an hour, though 35% were working longer than this without a break.

Forty-six per cent had received a payslip with their wages, while only 19% had a written statement of their employment terms and conditions.

Thirteen per cent of students were provided with details of the Protection of Young Persons (Employment) Act provisions, while 15% saw a summary of the Act displayed in their workplace.

8.3 Issues

There is general acceptance that the legislation is being breached widely and that the resulting situation can be extremely detrimental to the educational needs of many young people.

It is clear from the figures quoted above that effective enforcement of the legislation has been absent and, while the recent Government commitments to step up the enforcement are welcome, a major improvement is required as a matter of urgency.

There are indications that employers and parents may collude in ignoring the legislation and this may account for the low number of cases taken under the legislation. Likewise parents may choose not to ask too many questions regarding the times or hours worked by young people and, as we have seen, formal written consent by parents is only required in the case of the employment of a child.

8.4 Proposals

Increased inspection is required to ensure that employers with young employees are complying with the legislation. Employers failing in their duties should face prosecution.

Other ways in which the conditions of young people at work could be enhanced include:

proper rates of pay, at least in line with the national minimum wage requirements appropriate to young people;

provision of transport from work, particularly late at night, where no public transport is available;

allowance of time off in the period before examinations;

a right to return to work for those who have taken time off for examinations;

proper training including induction training.

The requirement for formal written consent from parents /guardians, currently required in the case of children, should be extended to the employment of young people as well.

Employers of children / young persons should be required to inform parents / guardians of the details of the legislation as well as the employees themselves.

8.5 References

Protection of Young Persons (Employment) Act 1996;

Protection of Young Persons (Employment) (Prescribed Abstract) Regulations SI 3 1997 [Display of information];

Protection of Young Persons (Employment of Close Relatives) Regulations SI 2 1997;

Protection of Young Persons Directive 94/33/EC 22/6/94;

ILO Convention concerning the Elimination of the Worst Forms of Child Labour.

APPENDIX ONE - SUMMARY OF RECENT EMPLOYMENT LEGISLATION

Industrial Relations Act 1990 - updates and amends previous industrial relations legislation.;

Payment of Wages Act 1991 - covers methods of payment, allowable deductions, and employee information in relation to wages;

Worker Protection (Regular Part-Time Employees) Act 1991 - extends various employment protection legislation, including that dealing with unfair dismissals and redundancy, to certain part-time employees;

Unfair Dismissals Act 1993 - updates and amends previous legislation dating from 1977;

Maternity Protection Act 1994 - replaced previous legislation and covers matters such as maternity leave, the right to return to work after such leave and health and safety during and immediately after pregnancy;

Terms of Employment (Information) Act 1994 - replaced previous legislation relating to the provision by employers to employees of information on such matters as job description, rate of pay, and hours of work;

Adoptive Leave Act 1995 - provides for leave from employment principally by the adoptive mother and for her right to return to work following such leave;

Protection of Young Persons (Employment) Act 1996 - replaced previous legislation dating from 1977 and regulates the employment and working conditions of children and young persons;

Organisation of Working Time Act 1997 - regulates a variety of employment conditions including maximum working hours, night work, annual and public holiday leave;

Parental Leave Act 1998 - provides for a period of unpaid leave for parents to care for their children, and for a limited right to paid leave in circumstances of serious family illness;

Employment Equality Act 1998 - prohibits discrimination in a range of employment related areas. The legislation extends the discriminatory grounds covered by previous legislation (gender and marital status) to family status, age, race, religion, disability, sexual orientation, and membership of the Traveller community;

National Minimum Wage Act 2000 - introduces an enforceable national minimum wage.

APPENDIX TWO - SUMMARY OF ENFORCEMENT STRUCTURES

RIGHTS COMMISSIONER SERVICE

This service is comprised of independent officers of the Labour Relations Commission who investigate disputes concerning a wide range of employment protection matters. Hearings are in private, except for Payment of Wages Act disputes were there is provision for public hearings. Rights Commissioners will, in many instances, endeavour to facilitate a settlement between the parties. If no such settlement is possible, the Rights Commissioner will issue a determination on the case. If either party is dissatisfied with the determination there is the right of appeal to either the Employment Appeals Tribunal or the Labour Court depending on the particular legislation involved.

Hearings at first instance

Unfair Dismissals Acts 1977 -93

(if parties consent - otherwise the case must be referred directly to the Employment Appeals Tribunal)

Maternity Protection Act 1994

Payment of Wages Act 1991

Terms of Employment (Information) Act 1994

Protection of Young Persons (Employment) Act 1996

Industrial Relations Acts

Protections for Persons Reporting Child Abuse 1998

Adoptive Leave Act 1995

Organisation of Working Time Act 1997 *

Parental Leave Act 1998

* Claims in relation to leave entitlements may be combined with certain other applications such as one under the Unfair Dismissals Acts 1977-93 and heard before the Employment Appeals Tribunal.

DIRECTOR OF EQUALITY INVESTIGATIONS

The Office of the Director of Equality Investigations is one of the bodies which investigates certain complaints arising from the Employment Equality Act 1998.

Referrals at first instance:

In relation to the Employment Equality Act 1998 such as discrimination on one of the prohibited grounds.

EMPLOYMENT APPEALS TRIBUNAL

This is an independent tribunal, each division of which consists of three members that hears a wide range of cases concerning employment protection legislation. Each division consists of a legally qualified chairperson, and two persons, one each from panels put forward by organisations representing employee and employer interests respectively.

Hearings at first instance:

Unfair Dismissals Acts 1977 - 93

(if parties do not consent to Rights Commissioner hearing at first instance)

Worker Protection (Regular Part-Time Employees) Act 1991

(only where there is a dispute as to whether or not an employee is a "regular part-time employee")

Minimum Notice - under the Minimum Notice & Terms of Employment Act 1973

Organisation of Working Time Act 1997

Redundancy Payments Acts 1967 -1991

Protection of Employees (Employer' Insolvency) Act 1984 - 1991

Appeals from Rights Commissioner decisions

Unfair Dismissals Acts 1977 -93

(where parties consented to Rights Commissioner hearing at first instance)

Maternity Protection Act 1994

Payment of Wages Act 1991

Protections for Persons Reporting Child Abuse Act 1998

Terms of Employment (Information) Act 1994

Protection of Young Persons (Employment) Act 1996

Adoptive Leave Act 1995

Parental Leave Act 1998

LABOUR COURT

The main function of the Labour Court is the settlement of trade disputes. The Court is arranged into three divisions consisting of a chairperson, two deputy chairpersons, and six ordinary members. The ordinary members consist of three employer representatives and three employee representatives appointed by the Minister for Enterprise, Trade and Employment after nomination by the Irish Business and Employers' Confederation (IBEC) and the Irish Congress of Trade Unions (ICTU).

Appeals from Rights Commissioner recommendations / decisions

Industrial Relations Acts

Organisation of Working Time Act 1997

The Employment Equality Act 1998 - at first instance

In relation to dismissals on one of the prohibited grounds or in circumstances amounting to victimisation.

Appeals

From the Director of Equality Investigations

DISTRICT COURT

Enforcement of decisions not complied with

Terms of Employment (Information) Act 1994

Protection of Young Persons (Employment) Act 1996

CIRCUIT COURT

Appeals from Employment Appeals Tribunal

Unfair Dismissals Act 1977 - 1993

Enforcement of decisions not complied with

Unfair Dismissals Acts 1977 -1993

Maternity Protection Act 1994

Payment of Wages Act 1991

Adoptive Leave Act 1995

Organisation of Working Time Act 1997

Parental Leave Act 1998

Employment Equality Act 1998

Employment Equality Act 1998 - at first instance

Certain matters may be referred to the court such as cases under the part of the Act dealing with equality between men and women.

Appeals

From the Labour Court

APPENDIX THREE - SOURCES

Employment Appeals Tribunal, AnnualReport1998;

Labour Relations Commission, AnnualReport1999;

Department of Social, Community and Family Affairs, Statistical Information on Social Welfare Services 1998;

Health and Safety Authority, Annual Report 1999;

Central Statistics Office, StatisticalBulletin, December 1999

National Social Service Board, Pre-Budget Submission1998;

National Social Service Board, Citizens Information Centres and Social Policy Work, 1999;

National Rehabilitation Board, Employment Challenges for the Millennium - Report of the NACTE Steering Group on Sheltered and Supported Work & Employment, 1997;

Irish Congress of Trade Unions / Employment Youthstart, Leaving Certificate Pupils and Work - A National Survey of Experiences and Attitudes

Programme for Prosperity and Fairness, January 2000

Source: Dail Debates 21^st March 2000 - Tom Kitt T.D. Minister of State at the Department of Enterprise, Trade and Employment.