The Anton Savage Show – Employment Law

Anton

Another familiar topic for me this week – Employment law. This was our listener’s email:

Dear Fergal, could you please help. My wife worked in a local hotel in a small town until leaving recently. It’s three weeks since she left and the owner refuses to pay her the holiday money she is owed and wages she has earned and badly needs right now. Do you have any advice? If she finds out I wrote to your show she will probably die of embarrassment but she really needs the money and I find this very unfair

This was my response.

And here are my notes:

Non-payment of wages and Employment rights generally
If you lose your job you have certain rights and entitlements including the right to be paid for work you have done and holidays you have earned. If you have not been paid by the date of dismissal or if you are still owed some wages, you have a legal entitlement to be paid them. The Payment of Wages Act 1991 regulates how your employer pays you, establishes your right to a payslip and states what legal deductions your employer can make from your pay. A non-payment is an unlawful deduction.

You can make a complaint, within 6 months. Use the “Single Complaint Form” available from http://www.workplacerelations.ie. The case will go to a Rights’ Commissioner, and will be fairly straightforward – you need only prove two things, that you worked the relevant hours, and that you didn’t get paid. It’s a good idea to keep any payslips, timesheets, etc, or to print out any work emails or other correspondence that show that you were working on the days in question.

Other Employment Rights

Many of these rights are limited to employees, so if you are freelance, or an independent contractor, they might not apply to you. There’s no strict rule on what makes you an employee, but important elements include whether you are on PAYE, whether you are registered for VAT, whether you are allowed to work for other people, how closely you are supervised. If you’re not an employee, there may be solutions available to you, just not under Employment law.

    The right against unfair dismissal/constructive dismissal.

Unfair dismissal can be unfair either because it was for no good reason, or because it was done without giving you fair procedures during and in the lead-up to the dismissal process.
Constructive dismissal is where you are forced out of your job. You resigned, but only because you were given no real choice.
You are also entitled to the proper notice when dismissed. This can be anything from 1-8 weeks, depending on your length of service. Payment can be given in lieu of notice.

Paid Holidays

20 days per full year worked (less if you don’t work the full year.
A paid holiday on all Bank Holidays, or else a paid day off within a month, an additional day of annual leave, or an additional day’s pay.

    Working Hours

The maximum average working week is 48 hours. This does not mean that it is prohibited to work more than these hours in any week, nor does it mean that one can stop work when you have worked 48 hours in a week. However it means that on average your working time should not be greater than 48 hours over a period of 4 months.
11 hours daily rest in each 24 hour period. This means that there must be 11 hours between the time you finish work and the time you start again.
1 period of 24 hours rest per week preceded by a daily rest period of 11 hours. This means you must have one day off per week
Rest breaks during work of 15 minutes after 4.5 hours have been worked; 30 minutes where up to 6 hours have been worked which may include the first break.
Zero Hours Working
“Zero hours contracts” require staff to be available for set hours each week, but with no guarantee they will get any specific amount of work. They are very common (and controversial) in the UK. The term was used quite a lot in relation to the Dunnes Stores dispute, but under Irish law, employees must be paid for at least 25% of the hours they are required to be available, whether they work them or not, so Irish employers tend to use “low-hours” contracts, where an employee might be guaranteed 15 hours with the possibility of more. However, there is no rule requiring those hours to be predictable, or saying how long a low-hours contract can go on for without. This gives the employer huge flexibility, and ensures a workforce that is unlikely to complain about anything unless they want their hours cut. In the wake of the Dunnes Stores dispute, there may be the political will to change the law in the area.

Bullying/Harassment

As with any form of victimisation, if you can show that bullying is discriminatory in nature, you may have a claim under Employment Equality. So if you are abused or insulted in ways that relate to your age, ethnicity, gender, sexuality, family status, or membership of the traveller community, it may constitute discrimination. The same goes for inappropriate interview questions.
Ordinary bullying is a grey area in the law. Where it causes you significant stress (ie illness, rather than mere unhappiness) you may have a case against the employer. Where you have brought the bullying to your employers’ attention and they have not acted, this will strengthen your case. However, bullying is subjective, and what is experienced as bullying from one perspective may appear harmless from another. A more useful remedy than suing may be to refer the matter to the Labour Relations Commission’s conciliation and mediation services.

Maternity Leave

You are entitled to return to your old job or an equivalent on after the conclusion of your maternity leave. Any dismissal by reason of your pregnancy will be an unfair dismissal.

Redundancy

On redundancy, you are entitled to two weeks’ pay per year of service, plus one week. Some employers pay more than that, but they are not required to.
Voluntary redundancy is entirely at the discretion of the employers. You can challenge a decision to make you redundant, but there is no means to challenge a decision not to make you redundant.

Time Limits

Most complaints have to be made within 6 months of the incident. Don’t let your employer run down the clock by delaying. If you don’t complain in time, you can’t pursue the matter.

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