Employment Law Flashcards
What are the two tests used by the courts to determine whether someone is an employee or an independent contractor
- The Traditional/Control Test - Under a contract of service, an employee is normally told to do a series of recurring tasks and is paid on a regular basis and is instructed by the employer how to do it
Example: Walsh v. Baileboro Co-op (1939)
2.** The Modern Test ** - Where a person is performing services for someone else, there will generally be a presumption that such person is acting as an employee and not as an independent contractor.
Example: Henry Denny & Sons v. Minister for Social Welfare (1998)
Factors the court will consider when making the decision of employee vs independent contractor
- Method of payment of wages
- Whether tax or PRSI is deducted at source
- Worker is viewed as being an employee by other employees
- The degree of financial risk taken by the worker
- May the employer dismiss the person?
- Examples of other factors the court will consider in making a decision
- Is the employee paid by way of salary as opposed to a fixed or lump sum for the performance of a specific task?
- Are they free to allow others use their equipment and transport?
- Who is responsible for any damage, destruction or loss of goods carried or for any loss caused by delay.
Why do you need to distinguish employee vs independent contractor
-
Statutory Protection - ‘the floor of rights’ only given to employees
2.** Vicarious Liability** - legally liable for the actions of another. E.g employer - Preference in Winding Up - when a company is in receivership or liquidation, debts to employees are treated as preferential debts
- Tax – Employees are on tax schedule E and have their PRSI deducted at source. Independent contractors are self employed and make their own tax returns under schedule D.
- Trade Union Representation – In some circumstances, only those under contracts of service are represented by Trade Unions.
Recently the revenue and courts more likely to hold a worker as being an employee rather than an independent contractor.
Why?
- Additional Protection
- Taxation
Terms of Employment (Information) Act 1994 provides that the employer must provide the employee with a written statement of the terms of employment within 1 month of starting work.
What must that statement include?
– Full names of the employer and the employee
– Address of the employer
– The place or places of work
– Job title and nature of the work
– Date of commencement of employment
– Duration of a temporary or fixed term contract
– The pay intervals and the rate or method of calculating remuneration
– The hours of work
– The paid leave
– The terms and conditions relating to injury
– The pensions and pension schemes
– The periods of notice of termination of employment
– Reference to any relevant collective agreements
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Is a contract of employment, that is formed orally, valid?
The agreement itself may be verbal and may validly exist. However, it will not be enforced by the court unless there is a written and signed note or unless certain other circumstances apply so that it would be inequitable not to enforce it.
What are employment contracts made up of
(a) Express terms
(b) Implied terms
What are Expressed Terms
- The key terms – payment, hours of work, etc.
- Usually discussed at interview or when job offered.
- Usually in written contract of employment also.
- May also include mobility clauses or restraint of trade clauses.
- Cannot try to exclude implied terms - invalid
CCLB
What are Implied Terms
– The Constitution
– Common Law
– From Statute or Legislation
– From Collective Bargaining
Where does employment law not apply
Self employed
If and when workers
Interns – no set hours don’t have to pay give a reference a job at the end of a job etc not obligations to you. Not insured or covered by employment law as not an employee
Where does employment law apply
Hourly paid – must have min 1 hour
Fixed term – has end date
Permanent + 1 yr
What does employment law entitle you to
- Maternity
- Redundancy
- Equality
- Paid leave
- H&S
- Unfair dismissel
Unfair Reasons for Dismissal
9
- Trade Union Membership or Activities
- Religious or Political Opinions
- Race or Colour
- Pregnancy or Connected Matters such as the eexercise of rights under Maternity Protection Act , 1994 or Adoptive Leave Act, 1995.
- Involvement in Legal Proceedings against an Employer
- Sexual Orientation
- Age
- Membership of the Travelling Community
- Unfair selection for redundancy
Remedies for unfair dismissel
3
- Reinstatement - This is the return of the employee to his or her former job, with no break in continuous service.
-
Re-engagement - Here the employee is given a new but equivalent job to the former job he or she held.
Used where WRC feel that reinstatement would be impossible. -
Compensation - Damages are payable for up to 104 weeks (2 years) remuneration.
Most widely awarded remedy
