TerraLex Cross-Border Guide to Cross-Border Labor & Employment Guidance

Ireland is home to many multinational employers. The Government promotes a business-centric agenda and has structural supports for foreign direct investment as well as local business. Irish employment law affords a wide range of protections to employees. Employment law in Ireland is governed by common law, statute, fundamental constitutional rights as well as EU law. While trade union representation is concentrated in certain sectors and is not universal, the protection of employment rights and, in particular, a focus on fairness of procedures in management of employment is a common theme in employee engagement.

As well as employing individuals to work for you as employees, there are other ways to engage staff in Ireland, for example, by engaging self-employed contractors or consultants (under a contract for service) or agency workers. Irish employment law draws a distinct difference between an employee and an independent contractor. A person is regarded as an employee if they are engaged under a ‘contract of service’ or contract of employment. A person is regarded as being engaged under a contract for service if they are ‘in business on their own account’ and a court or the Workplace Relations Commission (“WRC”) would examine the reality of the relationship in this regard rather than the ‘label’ put on the relationship in a contract. Depending on the relationship that is created between the business and the staff, the workers’ rights and responsibilities will differ. Generally, employees enjoy the greatest legal protection, particularly the right to claim unfair dismissal or redundancy payments. Entitlements of agency workers to equal treatment are provided in the Protection of Employees (Temporary Agency Work) Act 2012. Part-time workers are protected under the Protection of Employees (Part-Time Work) Act, 2001 (as amended). Employees employed on a fixed-term basis are protected under the Protection of Employees (Fixed-Term Work) Act, 2003 (as amended).

Under the Terms of Employment (Information) Act 1994 - 2014 (as amended), an employer is obliged to provide an employee with a statement in writing of core terms within five days of starting employment. The remaining terms should be provided not later than one month after the commencement of employment containing certain particulars of employment.

Employees who do not receive a statement of their terms of employment within the specified timeframes may refer a complaint to the WRC. An employee must have at least one month’s continuous service with that employer before they are entitled to refer a complaint to the WRC under the Terms of Employment (Information) Act 1994 - 2014 (as amended). Where a complaint is upheld, an employee may be awarded compensation up to a maximum of four weeks’ remuneration.

Entitlement to the national minimum wage is set out in the National Minimum Wage Act 2000 and 2015 and all experienced adult employees who are 20 years of age or over are entitled to be paid a minimum wage per hour. Sub minimum rates apply to employees who are under the age of 18, to employees who are 18 and who are 19. There are also different minimum rates of pay for employees in certain sectors which are set out in Sectoral Employment Orders and Employment Regulation Orders.

The national minimum wage will be replaced by a national living wage from 2026. The national living wage is to be set at 60% of the median wage in a given year.

In practice, many terms and conditions of employment may be negotiated between employers and trade unions on a collective basis. Employers and employees in any industry can agree minimum rates of pay and conditions of employment. There is an obligation on the employer to inform employees of conditions in collective agreements applicable to a contract of employment. Reference must be made to any collective agreements which directly affect the terms and conditions of the employee’s employment. The terms of a collective agreement may apply to employees who are not members of the trade union with which the agreement was concluded. In addition to localized collective agreements, there are also Sectoral Employment Orders which mandate certain minimum rates of pay and terms and conditions in particular industries (such as the construction sector; the mechanical engineering and building services contracting sector; and in the electrical contracting sector There are also Employment Regulation Orders which fix minimum rates of pay and conditions of employment for workers in specified business sectors, such as the contract cleaning and security industry sectors. Registered Employment Agreements are collective agreements relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union or trade unions and one or multiple employers or a trade union of employers, that is binding only on the parties to the agreement in respect of the workers of that class, type or group.

Some employers may offer benefits such as health insurance and company cars. These are at the discretion of the employer and are a matter of contract between the employer and the employee. Employers must offer access to a pension scheme or a personal retirement savings account.

An Automatic Enrolment Retirement Savings System for Ireland is expected to commence from 2024.

There is no statutory system for permanent employee representation in Ireland. In most cases in Ireland, employees are either represented through a trade union, or not represented at all. In the private sector, some organisations have set up works council type bodies on a voluntary basis. Employees have a constitutional right to be a member of a trade union but it has been established by the Irish Supreme Court that the employer also has a constitutional right to decide whether or not to deal with a trade union. While the principle of voluntary engagement with employee representation remains the position, there are circumstances in which an employer may be required to inform and consult with employee representatives (such as where a collective redundancy programme is proposed or there is a transfer of an undertaking). Employees also may refer certain types of collective disputes to the Irish Labour Court (an industrial relations body) even where it is not the practice of the employer to formally recognise a trade union as having negotiating rights.

All employees are entitled to be paid annual leave equal to: - Four working weeks in a leave year in which she or he works at least 1,365 hours;

• One third of a working week for each month in the leave year in which she or he works at least 117 hours;
• 8% of the hours he or she works in a leave year, subject to a maximum of four working weeks.

If more than one method of calculation is applicable, the employee will be entitled to whichever method provides greater entitlement. An employee cannot be paid in lieu of annual leave unless the employment relationship has terminated.

Public Holidays

There are ten public holidays in a leave year. An employee will be entitled to either:

• a paid day off on that day;
• a paid day off within a month of that day;
• an additional day of annual leave;
• an additional days pay.

The choice is at the discretion of the employer.

Working Hours

The maximum average working week of an employee cannot exceed 48 hours. In general, this average is calculated over four months. However for employees working in industries, by way of some examples, the security industry, hospitals, prisons, gas/electricity, airport/docks, agriculture, and employees in businesses which have peak periods at certain times of the year such as tourism the average working period is calculated over six months. In addition, where there has been an agreement between the employer and the employees and it has been approved by the Labour Court, the average working period can be calculated over twelve months.
Special provisions apply to young workers under 18 years of age, members of the defence forces or guards, individuals working at sea, and doctors in training.

Working Arrangements

The Work Life Balance and Miscellaneous Provisions Act 2023 introduced the right of all employees who have six months’ continuous service with their employer to request remote working arrangements and for that request to be dealt with in a transparent and expeditious manner. The employee is required to submit their request at least eight weeks prior to the commencement of the proposed arrangement and the employee is required to set out in writing the reasons why they are requesting a remote working arrangement and provide details of their proposed remote working location. The employer is obliged to consider the employee’s request, having regard to the WRC’s Code of Practice on the matter, and respond to the employee’s request within 4 weeks which can be extended by a further period not exceeding 8 weeks.

The Work Life Balance and Miscellaneous Provisions Act 2023 has been signed into law, however, the section dealing with remote working arrangements has not yet commenced by way of Commencement Order which is required to give it effect.

The Work Life Balance and Miscellaneous Provisions Act 2023 also amended the Parental Leave Acts 1998 to 2019 to introduce the right of certain employees who have six months’ continuous service with their employer to request flexible working arrangements for caring purposes. The right applies to parents of children under 12 years of age, or 16 if the child suffers from a disability or long-term illness, and to employees who are providing personal care to certain defined people who are in need of significant care or support for a serious medical reason. The process for requesting a flexible working arrangement for caring purposes mirrors that of the process for requesting a remote working arrangement, except that no Code of Practice applies to requesting flexible working arrangements.

The Work Life Balance and Miscellaneous Provisions Act 2023 has been signed into law, however, the section dealing with flexible working arrangements has not yet commenced by way of Commencement Order which is required to give it effect.

A Code of Practice on the Right to Disconnect was published by the WRC and took effect from 1 April 2021. The Right to Disconnect provides employees with the right to not engage in work-related matters outside of their normal working hours, including the right not to respond immediately to phone calls or emails unless in exceptional circumstances.

Employment may be terminated in a number of ways: - By notice being given by either the employer or employee;

• By mutual agreement;
• By reason of redundancy of the employee’s position as per the Redundancy Payments Acts 1967 to 2022;
• By way of dismissal as per the disciplinary procedure of the employer. Dismissal can be following a period of notice or it can be immediate following gross misconduct by the employee;
• By reason of the expiry of a fixed term contract or the cessation of the purpose associated with a specified purpose contract;
• By way of termination by the employee due to the conduct of the employer. Such termination is generally without notice and is known as ‘constructive dismissal’.

As a minimum, employees who are in employment for at least 13 weeks are entitled to the following notice periods under the Minimum Notice and Terms of Employment Acts 1973 to 2005:

• Employed 13 weeks to 2 years: 1 week
• Employed 2 years to 5 years: 2 weeks
• Employed 5 years to 10 years: 4 weeks
• Employed 10 years to 15 years: 6 weeks
• Employed over 15 years: 8 weeks

Longer notice periods may be agreed between the employer and employee. Payment can be made in lieu of notice if provided for in the contract or agreed to by the parties. Employees may pursue either a statutory claim for unfair dismissal or a claim at common law for wrongful dismissal. An employee may seek injunctive or declaratory relief in addition to damages when pursuing a claim at common law. An employee may take a claim to the WRC under the Unfair Dismissals Acts 1977 to 2021. An employee must take a claim to the WRC within 6 months of the date of dismissal unless the employee is delayed in doing so and there is ‘reasonable cause’ for the delay, in which case the time limit for submitting a complaint may be extended to 12 months.. In most circumstances, it will be for the employer to show that the dismissal was fair. An employee may obtain a maximum award of up to 104 weeks/two years’ remuneration if successful before the WRC. Each side in a claim before the WRC bears their own costs whether they are successful or not. Generally, employees need one year’s service (including notice period) to bring a claim for unfair dismissal but there are certain exceptions to this requirement.

Employees who qualify for redundancy are entitled to statutory redundancy payment as a minimum. In order to be entitled to this, employees must have been in continuous employment with the employer for a minimum of 104 weeks/two years and be over the age of 16. In addition, employees must be an employed contributor in employment which was insurable for all benefits in accordance with Social Welfare legislation, immediately before the date of the termination of their employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date. Statutory redundancy pay is two weeks’ pay per year of service plus one extra week (with pay capped at €600 per week). Employers may also elect to make ex gratia payments over and above the statutory minimum. Very often, other than in circumstances of insolvency, employers in Ireland tend to pay enhanced redundancy (often based on a formula of a number of weeks’ pay per year of service) over and above the basic statutory redundancy pay. The level of enhanced redundancy pay that would be expected is dependent on industry comparisons and the existence of any redundancy policy or practice in the employer.

Collective redundancies are governed by the Protection of Employment Act, 1977. They arise where, during any period of 30 consecutive days, the number of redundancies is:

• 5 or more employees in an establishment normally employing 21-49 employees,
• 10 or more employees in an establishment normally employing 50-99 employees,
• 10% or more of the employees in an establishment normally employing 100-299 employees,
• 30 or more employees in an establishment normally employing 300 or more employees.

In a collective redundancy, employers are required to engage in a collective information and consultation process ‘with a view to reaching an agreement’ with employees and cannot issue the first notice of dismissal within the minimum 30-day statutory consultation period. The Employer is also obliged to notify the Minister for Enterprise, Trade and Employment of the proposed collective redundancy at least 30 days before issuing the first notice of dismissal.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE”) apply if a business is taken over by another employer as a result of a legal merger or transfer.

Where the TUPE Regulations are triggered, both the transferor and transferee have joint obligations to provide certain information about the transfer to the employees and to consult with them no later than 30 days in advance of the transfer. The employees transfer to the transferee and are entitled to retain the same terms and conditions as applied before the transfer. The employees retain their continuity of service which is deemed to be with the new employer and the transferee becomes liable for obligations which accrued to employees before the transfer but were not discharged. As it stands, occupational pension arrangements do not have to be continued by the transferee. Dismissal may take place for economic, technical, or organisational reasons involving changes in the workforce (e.g. genuine redundancies).

Where a dispute between an employer and employee arises, it is recommended that the parties engage with one another on a local level to resolve the dispute. The Government has published a Statutory Instrument entitled the 'Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000' on the general principles of grievances and disciplinary procedures. Employers in Ireland very often develop their own grievance and disciplinary procedures using the Code of Practice as a basis. Those procedures are generally incorporated into employee handbooks for use in internal grievance and disciplinary matters.

Under Irish Employment Legislation, cases are first heard in the - Workplace Relations Commission (“WRC”). The WRC is an independent body which allows individuals to obtain redress for infringements of their employment rights. Complaints are presented in writing to the Director General of the WRC using the Single Complaints form. The complaint may be referred to a mediation officer if the complaint is capable of being resolved by mediation and provided that neither party objects. If the complaint is not capable of being resolved by mediation or has not been resolved by mediation following a referral, the complaint is referred to an adjudication office for adjudication. Neither party, employer or employee, has to be legally represented in the WRC. Generally, failure by an employer to comply with employment legislation may result in the WRC awarding up to a maximum of 104 weeks/two years’ remuneration to the employee. Each side in a claim before the WRC bears their own costs whether they are successful or not.

Decisions of an adjudication officer may be appealed to the Labour Court within 42 days from the date of the decision. Decisions of the Labour Court may be appealed to the High Court on a point of law only. Decisions of the High Court in this regard are final and conclusive.

Sick Leave Act 2022 As of 1 January 2023, all employers in Ireland are obliged to make minimum mandatory sick payments to their employees who are incapable of working due to illness or injury. Employees will be entitled to sick pay for up to 3 sick days per year. This is set to increase to 5 days in 2024, 7 days in 2025 and 10 days in 2026. To avail of the statutory payment, the employee must have a minimum of 13 weeks’ service with their employer and provide their employer with medical certification from a GP stating they are unable to work. An employee who meets the requirements will be entitled to statutory sick pay of 70% of their normal wages up to a maximum of €110 per day. There is nothing to prevent employers from operating their own contractual sick pay scheme so long as their scheme at least meets the minimum requirements of the legislation.

Maternity Protection Acts 1994 and 2004

Employees are entitled to 26 weeks of basic maternity leave and 16 weeks of additional maternity leave. In order to avail of maternity leave, the employee must inform her employer in writing not later than four weeks before the commencement of maternity leave of her intention to take maternity leave and provide a medical certificate confirming the expected week of confinement. The employee must take at least two weeks’ maternity leave before the baby is due and at least four weeks after the birth of the baby. The employee must notify the employer not later than four weeks before the expected date of return to work. There is no provision in Irish law for employees to be paid by the employer during maternity leave. A right to receive salary from the employer may be contained in the contract of employment or implied in the custom and practice of the business. Employees are, however, entitled to state maternity benefit provided the employee has sufficient social insurance contributions. Social welfare benefit is payable to the employee throughout basic maternity leave but is not payable during additional maternity leave. Some employers may pay the employee in full throughout maternity leave, provided that the social welfare benefit payable to the employee is reimbursed to the employer.

Employees are entitled to take paid time off work for pregnancy-related medical visits both prior to the birth and for up to 14 weeks post-birth, subject to providing their employer with a doctor’s note confirming the appointment. Employees are also entitled to paid time off for the purposes of attending a set of ante-natal classes, except for the last three classes in such a set. That entitlement exists regardless of whether it is the employee’s first or subsequent pregnancy.

Once the provision of the The Work Life Balance and Miscellaneous Provisions Act 2023 dealing with breastfeeding entitlements of employees has commenced by way of Commencement Order which is required to give it effect, employees who are breastfeeding will be entitled to paid time off for up to one hour each working day, or to a reduction in working hours by up to one hour per day for a period of up to 104 weeks post-birth, rather than for up to 26 weeks post-birth as it currently stands.

Paternity Leave and Benefit Act 2016

An employee who is a “relevant parent” is entitled to 2 continuous weeks’ unpaid leave at any time in the 26 weeks after the birth or placement of their child in the case of adoption. A “relevant parent” is defined as any of the following:

The father of the child;

• The spouse, civil partner, or cohabitant of the mother of the child;
• The nominated parent in a married same sex couple; or,
• The spouse, civil partner, or cohabitant of the qualifying adopter.
• The parent of a donor conceived child as further defined in legislation.

Entitlement to paternity leave extends to all employees regardless of service.

An employee who wishes to take paternity leave must notify their employer in writing no later than four weeks before they wish to commence leave and provide their employer with a doctor’s certificate confirming the date that the baby is due or, in the case of adoption, a certificate of placement in relation to the child. There is no provision in Irish law for employees to be paid by the employer during paternity leave. A right to receive salary from the employer may be contained in the contract of employment or implied in the custom and practice of the business. Employees are, however, entitled to state paternity benefit if they have the requisite social insurance contributions.

Parental Leave Acts 1998 to 2019

An employee who is a “relevant parent” is entitled to 26 weeks of unpaid leave to enable him or her to take care of their child. A “relevant parent” is defined as a person who is the parent, the adoptive parent or the adopting parent in respect of the child or a person who is acting in loco parentis to the child. Generally, an employee must have at least one year’s continuous service with the employer to become entitled to take parental leave, however, there are exceptions to this rule provided for under the Acts. The leave must be taken before the child reaches twelve years of age. Where an employee adopts a child between the ages of ten and twelve years, parental leave must be taken within two years of the adoption order. The parent of a child with a disability or long-term illness can avail of parental leave up until the child reaches 16 years of age or the date that the child ceases to have a long-term illness, whichever first occurs.
An employee who wishes to take parental leave must notify their employer in writing as soon as reasonably practicable but no later than six weeks before they commence leave. Parental leave can be taken as one continuous block, in two blocks of at least six weeks (with not less than ten weeks between them), or apportioned in any other manner with the agreement of the employer.

Adoptive Leave Acts 1995 to 2005

A qualifying adopter is entitled to 24 consecutive weeks of adoptive leave from a period beginning on the day of placement of the child in the qualifying adopter’s care. The qualifying adopter is defined as the nominated parent in the case of an adopting couple, or the sole adopter where an employee is adopting a child on their own. In the case of an adopting couple, the parent who does not avail of adoptive leave is entitled to paternity leave. An employee who wishes to take adoptive leave must notify their employer in writing no later than four weeks before they wish to commence leave and provide their employer with a certificate of placement confirming the adoption. There is no provision in Irish law for employees to be paid by the employer during adoptive leave. An Adoptive Benefit is available from the State to eligible parents, provided they have the requisite social insurance contributions. An additional 16 weeks may also be taken but the Adoptive Benefit is not available for this period.

Carer’s Leave Act 2001

An employee who has been in continuous employment of the employer for at least 12 months is entitled to carer’s leave for the purpose of providing full-time care and attention to a qualifying person for a period not exceeding 104 weeks. In order to do so, the employee must fulfill certain criteria under the Act.
Carers leave can be given as a continuous period of 104 weeks or as a number of periods, with not less than six weeks between each period. However, an employer may refuse to allow an employee to take a leave period of less than 13 weeks. The employer must give a reason for this refusal, in writing, to the employee. An employee must give their employer six weeks’ notice in writing of their intention to take up carer’s leave, or as soon as is reasonably practicable in exceptional emergency circumstances. There is no provision in Irish law for employees to be paid by the employer during carer’s leave, however, Carer’s Benefit is available from the State provided they have the requisite social insurance contributions.

Force Majeure Leave

The Parental Leave Acts 1998 and 2019 entitles an employee to paid time off in the event of urgent family reasons owing to the injury or illness of certain defined people where the presence of the employee is indispensable. The entitlement is to three days in any 12 consecutive months or 5 days in any 36 consecutive months.

Leave for Medical Care Purposes

The Work Life Balance and Miscellaneous Provisions Act 2023 amended the Parental Leave Acts 1998 to 2019 to introduce the right of employees to take up to five days of unpaid leave in any 12 consecutive months in order to provide personal care or support to certain defined people. Leave for Medical Care Purposes is separate and distinct to Force Majeur Leave and employees are entitled to take both types of leave.

The Work Life Balance and Miscellaneous Provisions Act 2023 has been signed into law, however, the section dealing with Leave for Medical Care Purposes has not yet commenced by way of Commencement Order which is required to give it effect.

Domestic Violence Leave

The Work Life Balance and Miscellaneous Provisions Act 2023 amended the Parental Leave Acts 1998 to 2019 to introduce the entitlement of an employee who has experienced in the past, or is currently experiencing, domestic violence to take leave to seek medical attention, psychological or other professional counselling, legal assistance, or any other relevant services that they may require. The entitlement extends to employees to take Domestic Violence Leave for the purposes of supporting certain defined people who are dependent on that employee to seek those relevant services. The entitlement is to up to five days paid leave in any 12 consecutive months. The rate of pay to which the employee is entitled, which is to be paid by the employer, is to be determined by the State.

The Work Life Balance and Miscellaneous Provisions Act 2023 has been signed into law, however, the section dealing with Domestic Violence Leave has not yet commenced by way of Commencement Order which is required to give it effect.

Parent’s Leave and Benefit Act 2019, as amended

An employee who is a “relevant parent” is eligible to take parents leave. Each parent is entitled to statutory parent’s leave of 7 weeks during the first two years of a child’s life or where the child is adopted, within 2 years of the placement of the child with the family. The provisions apply to births and adoptions on or after 1 November 2019, however, only parents of children who are under the age of 2 on 1 July 2022 are entitled to take the full 7 weeks of parent’s leave. Parents of children born between 1 November 2019 and 1 July 2020 are entitled to 5 weeks of parent’s leave. The leave can either be taken all at once or in blocks of at least one week at a time. An employee who wishes to take parent’s leave must notify their employer in writing no later than six weeks before they wish to commence leave. Employees do not have a legal entitlement to be paid by their employer during a period of parent’s leave, however, they may qualify for Parent’s Benefit from the State provided they have the requisite social insurance contributions.