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Are you starting up a small business?

Or perhaps you already have a business and intend taking on your first employee?

Maybe you are a non Irish company intending to employ someone in Ireland for the 1^st time?

By the end of this piece you will be absolutely clear as to your responsibilities for registration as an employer and what forms to use.

When do you need to register as an employer in Ireland?

If you pay wages in excess of €8 per week for a full time employee or €2 per week for a part timer, you must register as an employer for PAYE purposes. You must also notify the Revenue Commissioners within 9 days of your name and address.

Where your business is in the form of a company and there are no employees, you must still register as an employer for the payment of directors’ income. This applies regardless of where the directors live or carry out their duties.

Au pairs/nannies

If you employ an au pair or nanny, you must also register unless

1. You only have one and
2. They are paid less than €40 per week.

How to register as an employer

Fill out the appropriate form and send it in to Revenue. The forms are:

1. Form TR1 for an individual/sole trader/partnership
2. Form TR2 for a company registration
3. Form PREM Reg if you are already registered for income tax or corporation tax
4. Form TR2 (FT) for foreign companies registering for tax in Ireland

These forms can be downloaded from the Revenue website here.

If you have not registered as an employer, and you should have, Revenue can register you compulsorily and let you know.

If you cease to have employees you must notify Revenue within 14 days and complete an end of year return.

Change of ownership of business

If the business changes ownership the new employer should let Revenue know; a new employer registration number may be needed.

Same employer, different employer registration numbers

It can happen that the same employer can require different employment registration numbers. For example:

1. An employer with more than one branch can find it more convenient to operate a registration number for each branch
2. An employer may have different groups of employees, for example, warehouse and retail or office and factory.
3. A company may wish to operate a different registration number to manage directors’ paye and prsi
4. If the employer has an employee in receipt of a pension, he will need a separate paye/prsi registration number to keep a separate record of pay and pension.

• the express terms that should be in a contract of employment
• the 4 sources of implied terms in the employment contract.

You either love them or hate them.

What’s one person’s great opportunity to gain some valuable experience is another’s exploitation of the vulnerable, needy, and naive.

Regardless of your view, this piece will look at the legal aspects of internships.

Well known internships in Ireland include the JobBridge scheme and various FAS initiatives. Both of these internship schemes are specifically excluded from the rigours of employment law in Ireland.

But the internship offered by a private business or company has no such protection. It is this type of internship that I am writing about here.

The first important thing to understand is what an internship is and what is an intern.

Well, there is no statutory definition. And the key point for an employer to consider is whether their “intern” will actually be considered to be an employee with all of the employment law rights that flows from that.

An intern is someone who is engaged in a business or profession to observe and gain experience of a particular role, business, or industry. Many internships are unpaid, many are badly paid, and many may have the payment of “expenses” (eg for travel) to the intern.

The terms and conditions of internships vary widely from business to business but for an employer one of the most important things is whether the intern could be considered to be an employee or not..

Probably the most important factor in establishing whether an intern is an employee or not is whether he/she works or merely observes-work v education as it were.

If he/she works then he/she may well be an employee and be entitled to be paid, holidays, rest breaks, and so forth.

Elsewhere on this site you can read about the tests that are used to indicate whether someone is an employee or not.

But the vital thing to know is that regardless of what the parties say, a Court or tribunal will look at the facts of each individual situation and decide whether it is a contract of service (employee) or contract for services (independent contractor).

The same sort of analysis will be used if there is a dispute with the internship.

The National Minimum Wage Act, 2000 defines a contract of employment very broadly as follows:

contract of employment” means—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for that person or a third person (whether or not the third person is a party to the contract),
whether the contract is express or implied and, if express, whether or not it is in writing;

Accordingly it is clear that even though it has not yet been tested in Ireland, an intern could well successfully claim to be entitled to be paid under this legislation, provided he/she can show that he/she was an employee.

If the intern can show that he/she was an employee, not only will he/she have the right to be paid but he will gain the full protection of various employment law legislation governing holidays, rest breaks, anti discrimination, equality of opportunity etc.

TIPS FOR TAKING ON INTERNS:

1. Be fair and transparent in how you take them on. It reflects well on your company and is just the decent thing to do.
2. Consider having a written agreement, setting out the terms of the internship. This document would set out the parties expectations for the internship, what sort of training and feedback will be given, whether and to what extent there will be mentoring, and so on. Most importantly, this document would state that the intern is not an employee but that the purpose of the internship is for the intern to learn about the company, industry, or specific job/role and that the intern will not be paid. However paying reasonable and necessary expenses of the internship should be considered.
3. An internship should be short; the longer it is the more likely it is to involve the intern working and being considered, at least in the eyes of the law, an employee.
4. There should be some thought put into how the intern is to learn and whether he will shadow existing employees in various roles in order to learn..
5. Even though the intern is not an employee, it is good practice to ensure he has been given a copy of the company’s staff handbook and its most important policies and procedures. Of particular importance here would be health and safety and dignity at work..
6. If the business/company is going to discharge expenses of the intern eg travel expenses these should be vouched..

Regardless of your views on internships, they can be incredibly useful for the business and the intern.

Following the tips above means that both parties know what the ground rules are and make the engagement more beneficial and meaningful for intern and business/company.

If any of the issues raised above impact you contact us.

He only has about 11 months service in the job and was concerned that the employer was getting ready to dismiss him before he had the necessary 12 months service for the protection of unfair dismissal legislation.

Let me explain.

In order to have the statutory protection of the Unfair Dismissals Acts an employee needs to have 12 months continuous service in the job.

This guy has been called to a “meeting” to discuss his performance. There has already been a series of these meetings with heavy hints that these probationary review meetings were leading to one inevitable conclusion~dismissal.

The employer has made it quite clear that any dismissal will be carried out just prior to 12 months service being acquired. And will have the comfort of knowing that the employee is not protected under the Unfair Dismissals Act.

There is only one (major) problem with this~when I looked at the contract of employment it provides for 6 weeks notice of termination of employment.

And most importantly it provides for 1 months notice during the probationary period.

The key point here is that a dismissal does not take place until the end of the notice period, not when notice is given.

So my contact will almost certainly have 12 months service.

And the protection of the Unfair Dismissals Acts.

The employer wouldn’t have had much difficulty here, if his contract of employment provided for, say, one week’s notice during probation. But it doesn’t.

And he inevitably will face either

1. an unfair dismissal claim or
2. without prejudice negotiations for a negotiated exit, if he really wants to get rid of the employee.

Anyway, the moral of the story is that little mistakes can cost big money.

And a well drafted contract of employment is worth every penny.

There is no requirement for employees to undergo testing for intoxicants under existing legislation- the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005.

Neither is there an obligation on employers to test employees for intoxicants.

Section 13 (1) (c) provides for the making of regulations for the testing of employees:

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

However no regulations have yet been made so this clause does not apply.

Intoxicants are defined in the SAFETY, HEALTH AND WELFARE AT WORK ACT 2005 as

“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol;

It is clear therefore that over the counter medicines and/or prescribed drugs are included.

The employer’s obligations under health and safety legislation are set out in section 8 of the Act and are covered here. If intoxication at work is identified as a hazard it must be addressed in the employer’s safety statement.

If the employer cannot have the employee tested, what action can he take?

If the employee’s behaviour presents a danger to himself or others the employer can remove the employee from the situation.

While there is no obligation on the employer to test for intoxicants to obtain evidence, testing may be a company policy. If this is the case then any testing would need to be carried out in accordance with recognised standards. It would also need to be included in the employment contract or collective agreement.

The key point for employers is that where an employee appears to be “under the weather” that he is removed from the workplace if the employer considers him to be a risk to himself or others.

Employees too have obligations in respect of intoxicants in the workplace; these would include the reporting of a colleague who appeared to be under the influence of an intoxicant and who is a danger to himself or others.

Employers must deal with the issue of intoxicants in the workplace sensitively. Whether for example you would act on the evidence/opinion of one person or not would depend on the potential risk and danger.

In conclusion, it may be prudent to have an “intoxicants policy” in your workplace. We have supplied such policies (and others) to employers. If your workplace would benefit from one we would be happy to supply one at a very competitive price.

The law concerning young workers in employment in Ireland is set out in the Protection of Young Persons (Employment) Act 1996.

The Act aims to protect the health of young workers and to ensure a young person’s education is not put at risk during the school year.

The Act provides:

• Rest intervals and working hours limits
• Minimum age limits for employment
• Prohibits late night employment for young persons under the age of 18
• Defines a child as a person under the age of 16 and a young person as someone between the age of 16 and 18
• The records that employers must keep for young workers (those under the age of 18).

There are additional regulations made under the Act concerning the employment of young persons. The most important ones are:

• Statutory instrument 3/1997 Protection of Young Persons (Employment) (Prescribed Abstract) Regulations, 1997
• Statutory instrument 350/2001 Protection of Young Persons (Employment) Act, 1996 (Employment in Licensed Premises) Regulations 2001
• Statutory instrument 351/2001 Protection of Young Persons (Employment) Act, 1996 (Bar Apprentices) Regulations 2001

Some important points concerning the employment of young persons:

1. Employers must see a copy of the young person’s birth certificate or other evidence of his or her age before employing that person. If the young person is under 16, the employer must get the written permission of the person’s parent or guardian.

2. Young people aged under 18 are only guaranteed up to 70% of the national minimum wage which is €6.06 per hour

3. The maximum working week for young people aged 16 and 17 is 40 hours with a maximum of 8 hours a day. If a young person under 18 works for more than one employer, the combined daily or weekly hours of work cannot exceed the maximum number of hours allowed. Young persons are only permitted to work between 6am and 10pm. Any exceptions to this rule must be provided by regulation – see ‘Licensed premises’ statutory instruments above

4. Employers cannot employ children aged under 16 in regular full-time jobs. Children aged 14 and 15 may be employed as follows:

-Doing light work during the school holidays – they must have at least 21 days off work during this time

-As part of an approved work experience or educational programme where the work is not harmful to their health, safety or development

5.  Children aged 15 may do 8 hours a week light work in school term time. The maximum working week for children outside school term time is 35 hours or up to 40 hours if they are on approved work experience.

6. Employers must give employees aged under 18 years a copy of the official summary of the Protection of Young Persons (Employment) Act, along with other details of their terms of employment within one month of taking up a job. Employers with employees under 18 must also display the official summary of the Act at a place in their workplace where it can be easily read.

7. Employers found guilty of an offence under the Act are liable on summary conviction to a fine of up to €1,904.61. Continuing breaches of the Act can attract a fine of up to €317.43 a day.

Fixed term employees are employed on the same type of contract-either a fixed term contract or a specified purpose contract.

A fixed term contract is one where the end date of the contract is known at the outset whereas a specified purpose contract is one which terminates on the occurrence of a specific event or cessation of a specific purpose.

The Employment Equality Acts apply to all employees, regardless of their length of service.

So fixed term employees are protected from indirect discrimination by virtue of their fixed term status.

The Protection of Employees (Fixed-Term work) act, 2003 offers significant protection to fixed term workers and the purpose of this legislation is

1. to ensure that fixed term workers are afforded no less favourable treatment than their comparable permanent counterparts and
2. to prevent employers from abusing employees by employing them on a series of successive short fixed term contracts, rather than offering them permanent one.

Prior to this legislation fixed term employees were protected by the Unfair Dismissals Acts and the Employment Equality Acts.

A fixed term employee is defined in the Protection of Employees (Fixed-Term work) act, 2003 as:

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

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

It is worth noting that the Employment Appeals Tribunal (EAT) are quite strict on these conditions being met in order to avoid an unfair dismissal award being made against the employer.

The above exclusion does not apply to dismissal during the term of the fixed term contract, provided of course the employee has the necessary period of continuous service (1 year).

There is an anti-abuse provision in the Unfair Dismissals (Amendment) Act 1993  also which prevents the employer from giving the employee a series of fixed term contracts.

An employee can also successfully claim for unfair dismissal if he/she has been employed on more than one fixed term contract and the gap between contracts is less than three months and the last contract was granted in an attempt to avoid liability under the Unfair Dismissals legislation.

Renewal of fixed term contracts

It has been held by the Labour Court that the non renewal of a fixed term contract will not, of itself, give rise to a claim of less favourable treatment under the act.

The Act also provides that where an employer proposes to renew a fixed term contract the employee shall be informed in writing, not later than the date of the renewal, of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration.

(See also contract of indefinite duration-are you entitled to one after successive contracts of employment?)

Successive fixed term contracts

Generally there is a limit of four years on the length of successive fixed term contracts with the same employer or associated employer.

However there is no limit on the duration of the first fixed term contract. This limitation of four years refers to “continuous employment”  in fixed term contracts and this definition has been well tested as to what is considered continuous and otherwise.

Section 9 deals with the definition of continuous employment within the context of the fixed term work act.

(Learn more about successive fixed term contracts and how the entitlement to a contract of indefinite duration can arise.)

Less favourable treatment and objective justification

Where an employee on a fixed term contract is treated less favourably than his permanent counterpart with respect to one term of his contract this can be objectively justified if

1. It arises from a real need on behalf of the employer
2. Is appropriate to achieve the objective
3. Is necessary to achieve the objective.

Otherwise, one of the main objectives of the legislation is to ensure that fixed term employees are given parity of treatment in respect of their conditions of employments as comparable permanent employees.

Section 5 of the Act defines what a comparable employee is:

The Labour Court has held that a fixed term employee does not have an automatic right to have the contract renewed on its expiry and that the non renewal of a fixed term contract will not, of itself, constitute less favourable treatment within the meaning of section 6 of the Act.

Other obligations of employers re fixed term employees

Some other obligations of employers include

• The employee must be notified in writing as soon as possible of the objective condition ending the contract. This may be arriving at a specific date or the occurrence of a specific event.
• The employer must inform the employee of vacancies and training opportunities to avail of a permanent job should one arise.

Fixed term employees may make a complaint to the WRC in the first instance should a breach of their rights occur; the next step would be and appeal to the Labour Court and then to the High Court (but only on a point of law). The time limit is 6 months or 12 months in exceptional circumstances.

Section 13 of the Act prohibits penalization of the employee by the employer for making a complaint.

Redundancy of fixed term workers

A fixed term employee may be redundant within the meaning of the Redundancy Payments Acts on the expiry and non renewal of his/her fixed term contract.

Part time workers are a major feature of the Irish workplace. And they used to have little or no protection from exploitation or abuse.

Not any more.

The Protection of Employees (Part-Time Work) Act, 2001 offers a considerable degree of protection to part time and casual workers.

The principle goals of this legislation are to prevent discrimination against part time workers and to improve the quality of part time working conditions.

In addition the Code of Practice on Access to Part Time Work (SI 8/2006) seeks to encourage promotion of part time work including helping employees access part time work by more encouraging workplace policies by employers in respect of access.

While the code of practice is not mandatory should such a code of practice exist in the workplace this will be admissible as evidence in any Court or hearing of a dispute between employer and employee.

Employers who fail to recognise this change are leaving themselves open to successful claims from employees through the Rights Commissioner service within 6 months of the alleged contravention and prosecution from NERA.

Any clause in an employment contract which seeks to exclude any aspect of the Protection of Employees (Part-Time Work) Act, 2001 will be void (section 14).

The act protects all part time employees including apprentices and defines a part time worker as “an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her”.

“Normal hours of work” is broadly the average number of hours worked per day over a reference period.

A “comparable full time employee” is defined in the act by compliance with various conditions set out in the act.

“Conditions of employment” are also defined in the act and principally concern remuneration/pay.

No Less Favourable Treatment

The principle thrust of the act is that part time employees, like fixed term workers, are to be treated no less favourably than their full time counterparts unless that favourable treatment can be justified on an objective ground (objective justification).

This is a similar situation to fixed term workers who can be treated less favourably on objective grounds. Treating employees less favourably on objective grounds is only acceptable where the considerations surrounding the treatment

• Have nothing to do with the fact that the employee is part time
• The purpose is for a legitimate objective
• The treatment is necessary and appropriate for that purpose.

See section 12 of the Act.

The Act provides though that an objective ground for less favourable treatment may be easier to justify for casual part time work but not “part time” per se. ((2) For the avoidance of doubt, a ground which does not constitute an objective ground for the purposes of section 9 (2) may be capable of constituting an objective ground for the purposes of section 11 (2).)

Section 15 of the Act provides that the employee shall not be penalised for making a complaint or invoking a right under the Act.

 Principle of Proportionality

When applying entitlements to part time employees on a pro rata basis it is important to note that the entitlement in question must be capable of being given on a pro rata basis.

The rate will depend on the number of hours worked by the part timer as a proportion of the hours worked by a full time employee.

Part Time Workers and Overtime

A provision whether in a collective agreement or in terms and conditions of employment whereby part-time workers do not receive overtime until they have completed the standard number of hours under which a comparable full time worker could be entitled to claim overtime is not unfavourable treatment and is not discriminatory.

Curry v Boxmore Plastics Ltd addressed this issue in the Labour Court.

However Abbott Ireland Ltd. v SIPTU is authority for the proposition that part time workers are entitled to a shift premium in respect of hours which were “unsocial” and “family unfriendly”.

Casual Part Time Employees

A casual part time employee is a part time worker who works on a casual basis.

This generally means that the casual part time worker is one who has worked with the employer for less than 13 weeks and that employment could not be regarded as seasonal or regular or he/she is recognised as such in an approved collective agreement (Section 11 of the Protection of Employees (Part Time Work) Act 2001).

Prohibition on penalisation

Section 15 of the 2001 Act prohibits the employer from penalizing the employee for making a complaint under the Protection of Employees (Part-Time Work) Act, 2001.

Redress for Part Time Workers

The redress for part time workers is the same as for fixed term workers

Decisions of the Rights Commissioner service can be appealed to the Labour Court.

As can be seen from the above, a part time worker can be awarded up to 2 years remuneration if (s)he brings a successful claim.

Therefore even an employee working only 20 hours a week on minimum wage can cost the employer a lot of money if (s)he is successful in bringing a claim for unlawful less favourable treatment.