Employment and employee benefits in Ireland: overview

A Q&A guide to employment and employee benefits law in Ireland.

The Q&A gives a high level overview of the key practical issues including: employment status; background checks; permissions to work; contractual and implied terms of employment; minimum wages; restrictions on working time; illness and injury; rights of parents and carers; data protection; discrimination and harassment; dismissals; redundancies; taxation; employer and parent company liability; employee representation and consultation; consequence of business transfers; intellectual property; restraint of trade agreements; relocation of employees and proposals for reform.
To compare answers across multiple jurisdictions, visit the employment and employee benefits Country Q&A tool.
The Q&A is part of the global guide to employment and employee benefits law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employment-guide.

 

Scope of employment regulation

 

1. Do the main laws that regulate the employment relationship apply to:
  • Foreign nationals working in your jurisdiction?
  • Nationals of your jurisdiction working abroad?

 

Laws applicable to foreign nationals

The employment relationship in Ireland between employer and employee is principally governed by contract law. Parties are free to choose the terms and conditions applicable to their specific working relationship. Once legally working in Ireland, migrant workers have the same minimum statutory employment protections as their Irish counterparts.

 

Laws applicable to nationals working abroad

Irish nationals working abroad are subject to the laws of the jurisdiction in which they are employed. A contract of employment may contain a provision which states that Irish law must apply and govern the employment relationship. However, it should be noted that a relatively recent European Court of Justice ruling confirmed that jurisdiction clauses seeking to prevent employees bringing proceedings before courts having the relevant jurisdiction under EU legislation in a relevant sector are not enforceable against employees (Sandra Nogueira and Others v Crewlink Ltd and Miguel José Moreno Osacar v Ryanair (Cases C-168/16 and 169/16) EU:C:2017:688).

 

Employment status

 

2. Does the law distinguish between different categories of worker? If so, what are the requirements to fall into each category, the material differences in entitlement to statutory employment rights and are there any maximum time periods for which each category of worker can be engaged?

 

Categories of worker

There are two categories of worker in Ireland:
  • Employees: working under a contract of service.
  • Self-employed or independent contractors: working under a contract for services.
There is no comprehensive statutory or common law definition of employee in Irish law. A number of factors such as mutuality of obligation, the degree of control and payment of tax are considered to determine an individual’s employment status. The Code of Practice for Determining Employment or Self-employment Status of Individuals 2018 provides criteria which can be used to determine the employment status of an individual (https://www.revenue.ie/en/self-assessment-and-self-employment/documents/code-of-practice-on-employment-status.pdf).

 

Entitlement to statutory employment rights

The majority of employment statutory rights apply to employees only, including part-time and fixed-term employees.

 

Time periods

An individual’s employment status is not determined by length of service. There are no maximum time periods for which a category of worker can be engaged. There is no single fixed retirement age for employees in Ireland. The retirement age of an employee is usually contained within the contract of employment (Quigley v Health Service Executive [2017] IEHC 654). This is usually set at 65 years of age.

 

Recruitment

 

3. Are any grants or incentives available for employing people? Does any information/paperwork need to be filed with the authorities when employing people?

 

Grants or incentives

The Industrial Development Agency Ireland (IDA) provides training grants, asset and technology grants, international marketing programmes, incentives to increase performance and competitiveness, alongside funding and grants for foreign direct investment in Ireland. There is a 25% tax credit available for companies engaging in research and development (R&D) in Ireland.
The Employment Investment Incentive Scheme (EIIS) is an incentive scheme for individual investors and it provides annual tax relief for investments into EIIS-certified small and medium sized qualifying companies (SMEs). Tax relief is initially available for up to 30% in year one, with a further 10% off total income tax relief (including rental income) where employment levels are proved to have increased at the end of the holding period of four years or where pre-defined R&D expenditure requirements have been met over the term of investment. A maximum tax relief on investments up to EUR150,000 can be obtained in each tax year up to 2020.
The Special Assignee Relief Programme is designed to attract high-value employees to Ireland with a view to supporting and encouraging inward investment and job creation. To qualify, an employee must have worked for a minimum of six months for the relevant employer outside Ireland immediately before commencing work in Ireland. Employment must last at least 12 months in Ireland. The programme exempts 30% of a qualifying employee’s income between EUR75,000 and EUR1,000,000 from income tax. The scheme does not extend to the universal social charge (USC) or pay-related social insurance (PRSI), which must be paid on all income. Employees can also receive certain travel expenses tax free, including an annual trip home. Educational relief is available of up to EUR5,000 per child each year for the education of the employee’s children within Ireland for the first five consecutive years of tax residency. Relocation expenses are tax exempt in certain circumstances. This tax relief can be claimed for five years.
Start-up Refunds for Entrepreneurs (SURE) is a tax relief incentive scheme for entrepreneurs in start-up businesses. An entitlement of up to 41% of the capital invested may be claimed. Depending on the size the investment made, a refund of income tax paid previously over the six years before the year of investment may be recouped.
The Knowledge Development Box (Certification of Inventions) Act 2017 (KDB) introduces a lower rate of corporation tax on profits arising from intellectual property (IP) assets resulting from R&D. The IP asset must be novel, non-obvious and useful. If a company qualifies for KDB, it may be entitled to a deduction equal to 50% of its qualifying profits. Qualifying profits are taxed at 6.25% corporate tax.
The online training “Customs Insights” course was launched in late December 2018 to help all businesses understand how customs works, including the documentation and processes required to operate and succeed post Brexit. The “Customs Insights” course provides key actions companies can take to prepare for customs after Brexit, and provides options from the Revenue enabling businesses more efficient use of the customs process. Open to all businesses on www.prepareforbrexit.ie, the free online “Customs Insights” course takes 45 minutes to complete and covers both importing and exporting procedures.
The European Angels Fund (EAF) programme is managed by the European Investment Fund and currently covers eight EU countries, including Ireland. An agreement to double the size of the existing EAF Ireland to EUR40 million was signed in November 2018. The EAF Ireland co-invests alongside approved Business Angels in Irish-based internationally trading SMEs and allocates sums from EUR250,000 to EUR4 million over ten years to the Angels, to double their investment into the SME. By increasing the fund to EUR40 million, it is anticipated that up to 100 companies will be supported over the next ten years.
Recruitment. JobsPlus is a state-sponsored, grant-based incentive scheme for employers employing jobseekers who have been unemployed for more than 12 months. The Department of Social Protection pays the incentive to the employer in monthly arrears over a two-year period. It provides two levels of regular cash payments:
  • A payment of EUR7,500 for each person recruited who has been unemployed for more than 12 but less than 24 months.
  • A payment of EUR10,000 for each person recruited who has been unemployed for more than 24 months.
The Job Expansion Fund provides grant support up to a maximum of EUR150,000 towards the recruitment of new employees. Enterprise Ireland also provides finance towards the costs of employing key personnel and support for high-potential start-up businesses.
Developments for 2019. Budget 2019 maintained Ireland’s corporate tax rate of 12.5%. New legislation was enacted for Controlled Foreign Companies (CFC) effective for accounting periods beginning on or after 1 January 2019. The CFC rules are designed to prevent the diversion of profits to offshore entities in low or no tax jurisdictions. An “exit tax” has been introduced as part of Directive (EU) 2016/1164 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (Tax Avoidance Directive), which is designed to ensure that, where a corporate taxpayer moves assets or migrates its tax residence from Ireland, any gains that have built up in Ireland will be subject to an exit tax of 12.5%.
The VAT rate on the tourism and services sector has increased from 9% to 13.5% since 1 January 2019, with the exception of newspapers and sporting facilities.
The Key Employee Engagement Programme (KEEP) scheme is a tax-advantage share scheme, intended to allow Irish employers compete with share option schemes used by large multi-national corporations to attract and retain employees. The main benefit of the scheme is the ability of employees to sell their shares quickly for cash. This is not possible for shares held in private Irish companies as it is not easy to convert them into cash. Gains on the exercise of KEEP share options are liable to capital gains tax (currently 33%) rather than income tax, universal social charge (USC) and pay-related social insurance (PRSI) (currently 52% or more). Budget 2019 increases the ceiling on annual market value of share options granted to match salary (up from 50%), replacing the three-year limit with a lifetime limit and increasing the maximum amount of share options which can be granted to EUR300,000.
The Brexit Loan Scheme offers up to EUR300 million in funding, offering loans of up to EUR1.5 million to eligible businesses with up to 499 employees at a maximum interest rate of 4%. The scheme is delivered in partnership with the EIB group and the European Commission. The scheme is open through Bank of Ireland, Ulster Bank and AIB and will remain open until 31 March 2020.
A new Future Growth Loan Scheme will offer loans over eight to ten years to allow businesses to make strategic investments after Brexit. The scheme will be delivered by the Strategic Banking Corporation of Ireland through participating finance providers and is envisaged to launch in early 2019.
The Disruptive Technologies Innovation Fund (DTIF) provides EUR500 million for R&D and deployment of disruptive technologies and applications, specifically in areas such as AI, robotics, smart food production and health and wellbeing. Projects must be collaborative in nature, involving a number of partners working together, and is available until 2027.
Three Year Start Up Relief provides corporation tax relief for profit-making start-up companies which create and maintain jobs in Ireland in their first three years of operation where the company’s total corporation tax liability for a 12-month accounting period does not exceed EUR40,000. The maximum relief over three years is EUR120,000 (EUR100,000 for companies engaged in the transport sector). The relief is being extended a further three years, until the end of 2021.

 

Filings

All employers within Ireland must register with the Revenue Commissioners (Revenue). Revenue must be informed of new employees within nine days of the employee’s start date. New employees must provide their new employer with their P45 Form. Part 3 of the P45 must be submitted to Revenue to request a Tax Credit Certificate (P2C) for a new employee. Form P46 must be completed if a new employee does not have a Form P45. Employers must also make monthly, quarterly and annual pay-as-you-earn (PAYE), PRSI and USC returns (Forms P30 and P35). From 1 January 2019, employers must report to Revenue the full details of all payments and deductions made each time an employer pays an employee. This is in addition to the current situation where only a form P35, which gives details of payments to employees and relevant deductions, is submitted after year-end.

 

Background checks

 

4. Are there any restrictions or prohibitions on carrying out background checks in relation to applicants?

 

The introduction of Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation (GDPR)) and the Data Protection Act 2018has introduced stringent obligations upon employers processing personal data and special category data of employees and applicants. Employers intending to carry out background checks on applicants must first seek their consent and inform them in advance of the nature and extent of the checks to be undertaken. Only relevant candidate information can be collected and processed. It is unlawful for an employer to require an employee or applicant to make a subject access request to a former employer to provide that information to the new (or prospective) employer (see also, Question 16). Employers who wish to verify a candidate’s qualifications or experience with a third party must obtain the candidate’s explicit consent to the processing of his or her personal data. Employers must have data processor agreements in place if engaging a third party to perform background checks. Employers cannot request an individual’s personal public service (PPS) number until a candidate has been offered or commenced employment. A PPS number is a personal reference number used for social welfare, public services, taxation and payroll purposes in Ireland.

 

Criminal checks

There is no specific mechanism for carrying out a criminal background check on a candidate in Ireland. Certain jobs have a legal requirement for Garda vetting before commencement, such as working with vulnerable adults or children (An Garda Síochána is the police force for the Republic of Ireland). Any such criminal background search may only be performed by the National Garda Vetting Unit (NGVU). An employer can ask an employee to declare any previous relevant criminal convictions which may affect the desirability of them performing a particular task, subject to the same question being asked consistently of all applicants to prevent discrimination. In reality, an employer cannot verify the answers provided as Ireland does not have a publicly available database to perform such checks.

 

Qualification verification

It is common practice in Ireland for employers to ask candidates to provide the name and contact details of two previous employers for references and to provide proof of education. Employers must ensure that such verification is relevant and proportionate. Such information must be requested consistently from all candidates for a particular role so as not to discriminate.

 

Medical history

Pre-employment medical checks may be justified where health or fitness is relevant to the role. Employee medical history constitutes special category personal data under data protection legislation and, subsequently, may only be lawfully processed under one of the lawful grounds specified by Article 9 of the GDPR.

 

Immigration status

Employers may request immigration status verification where it is necessary to ensure a candidate has the right to work in Ireland. Requests for original documentation should be made to all candidates in order to prevent claims of discrimination. An employer must retain the particulars of an employee’s employment permit on file.

 

Social media

Employers may use social media to screen candidates: however, employers should inform candidates in advance of any social media checks. Candidates should be granted an opportunity to comment on any information obtained from his or her social media before a decision is made in relation to their employment application. Employers should be aware of their duties under data protection legislation and employment equality legislation in conducting such screening.

 

Permission to work

 

5. What prior approvals do foreign nationals require to work in your country? What information/paperwork needs to be kept or filed with the authorities when they start work?

 

Non-EEA nationals (unless exempted) must hold a valid employment permit. For certain non-EEA nationals, a visa is also required to gain entry into Ireland.

 

Visa

Procedure for obtaining approval. A visa application can only be made after an employment permit has been obtained. A visa application can be made up to three months before the date of intended travel to Ireland. Applications can be made online at the Irish Naturalisation and Immigration Service (INIS) website (www.inis.gov.ie) or at the Irish Embassy or Consulate in the candidate’s country.
Cost. The fees for visa applications are:
  • Single entry visa: EUR60.
  • Multi-entry visa: EUR100.
  • Transit visa: EUR25.
  • Emergency re-entry visa: EUR160 (allows exit and re-entry into Ireland at short notice).
Additional fees may be charged relating to the submission of documentation. Certain applicant countries are exempt from visa fees.
Time frame. There is a general waiting period of eight weeks for a visa application decision from the date on which the application is lodged (the waiting period may be longer than this). Generally, visas must be renewed within ten weeks of their expiry date if the holder wishes to remain in Ireland.
Sanctions. If a person who requires a visa is refused or fails to obtain a visa, they will be refused entry into Ireland. A person who is found guilty of an offence under the Immigration Acts 1999 to 2004 (as amended) may be liable to a fine and/or a term of imprisonment.

 

Permits

Procedure for obtaining approval. Applications for employment permits can be made by prospective employees or employers using the Employment Permits Online System (EPOS) (https://epos.djei.ie/). The type of permit required depends on the length and nature of employment, salary level, industry and skills required. A contract of employment signed by both parties must be submitted with each application. An application for an employment permit must be received at least 12 weeks before the proposed employment start date.
There are nine types of employment permit governed by the Employment Permits Act 2003 to 2014:
  • General Employment Permit.
  • Critical Skills Employment Permit.
  • Dependent/Partner/Spouse Employment Permit.
  • Intra-Company Transfer Employment Permit.
  • Contract for Services Employment Permit.
  • Reactivation Employment Permit.
  • Sport and Cultural Employment Permit.
  • Exchange Agreement Employment Permit.
  • Internship Employment Permit.
Employment permit holders must register with the Garda National Immigration Bureau following entry into Ireland.
Cost. The general first application fee for most permits is:
  • EUR1,000 for up to 24 months.
  • EUR500 for six months or less.
The general renewal fee for most permits is:
  • EUR750 for six months or less.
  • EUR1,500 for up to 36 months.
Time frame. Applications are processed in order of date received. An application status enquiry may be made online to ascertain the application progress. Employment permit applications must be made three months in advance of the expected date of arrival into Ireland.
Refusal. In the event of an employment permit being refused, an internal review may be requested within 21 days of the notification of refusal.
Sanctions. Employment permit holders can only work for the named employer or connected person in the occupation provided on their employment permit. Permit holders must abide by the immigration rules. Employing someone without a valid employment permit is a criminal offence under the Employment Permits Acts. A breach of the Employment Permit Acts may lead to a fine or term of imprisonment alongside the refusal or revocation of the employment permit. Apart from certain exceptions, employees receiving a first time permit must stay with an employer for 12 months before they can seek to move to another employer. Moving to another employer will require a new permit application.

 

Other

The following schemes are run by the Department of Justice and Equality for non-EEA nationals who commit to investment in Ireland:
  • Immigrant Investor Programme (IIP). This enables non-EEA nationals and their families to acquire secure residency status in Ireland upon the commitment to invest a minimum of EUR1million in an approved investment for a minimum of three years. The minimum investment monies must come from the applicant’s own resources and cannot be financed through a loan or other such facility.
    The Department of Justice and Law Reform has recently updated its IIP guidelines. The IIP will be open for applications from:
    • 4 March 2019 to 8 March 2019;
    • 20 May 2019 to 24 May 2019;
    • 19 August 2019 to 23 August 2019; and
    • 21 October 2019 to 25 October 2019.
    Applications received outside these periods will be returned.
  • Start-up Entrepreneur Programme. This enables non-EEA nationals and their families to acquire secure residency status in Ireland if they commit to a high-potential, start-up business in Ireland. Funding of EUR75,000 must be in place.
EU nationals have free movement rights in Ireland and no quotas apply.

 

Restrictions on managers and directors

 

6. Are there any restrictions on who can be a manager or company director?

 

Age restrictions

All company directors must be over 18 years of age. There are no age restrictions for managers.

 

Nationality restrictions

There are no nationality restrictions for directors or managers in Ireland, however, a company must have one of its directors resident in an EEA member state (Companies Act 2014). If a company does not have an EEA-resident director, the company must hold a bond to the value of EUR25,000 or a statutory certificate stating the company has a real and continuous link with one or more economic activities carried out in Ireland.

 

Other restrictions

There is no requirement or qualification for a person to become a director. Directors who are undischarged bankrupts cannot act as an officer or directly or indirectly take part in or be involved with the promotion, formation or management of any company, except with the leave of the High Court. If an undischarged bankrupt acts as a director, he or she is guilty of an offence. Subject to certain exceptions, Section 142 of the Companies Act, 2014 provides that a person cannot be a director of more than 25 companies.
Where an insolvent company goes into liquidation or receivership, a director of a company who fails to satisfy the Office of the Director of Corporate Enforcement (ODCE) or the court that he or she has acted honestly and responsibly may be restricted. Restriction undertaking is an administrative procedure that provides an option to submit to a restriction without the need for a court hearing. Restriction lasts for a period of five years and confines a person to being a director of companies that have been adequately capitalised by their members or shareholders. A director can be disqualified by court order or by accepting and signing a disqualification undertaking offered by the ODCE. A person is automatically disqualified by the court, if that person is convicted on indictment of either:
  • Any offence under the Companies Act or any other enactment in relation to a company as prescribed.
  • Any offence involving fraud or dishonesty.
Disqualification is for a period of five years and means that person is prevented from being appointed or acting as a director or other officer, statutory auditor, liquidator/receiver/examiner, or being in any way, whether directly or indirectly, concerned or taking part in the promotion, formation or management of any company.
The Companies Registration Office (CRO) maintains a public register of disqualified persons (https://search.cro.ie/company/DisqualifiedSearch.aspx).

 

Regulation of the employment relationship

 

7. How is the employment relationship governed and regulated?

 

Written employment contract

A contract of employment is governed by the common law principles of contract law. Employment legislation provisions cannot be contracted out of in the employment contract. The Terms of Employment (Information) Acts 1994 to 2014 (recently amended by the Employment (Miscellaneous Provisions) Act 2018) imposes an obligation on employers to provide employees with a written statement containing five core terms of employment, within five days of commencing employment. Failure to provide this statement can lead to criminal prosecution of the employer. This is not an obligation to provide a written contract but most employers comply by providing a written contract. The following core particulars must be contained in the written statement (effective from 4 March 2019):
  • Names of the employer and employee.
  • Address of the employer.
  • Expected duration of temporary employment or the end date of a fixed-term contract.
  • Method of calculating pay and pay reference period for the purposes of the National Minimum Wage Act 2000.
  • Number of hours which the employer “reasonably expects” the employee to work:
    • per normal working day; and
    • per normal working week.
The amendment supplements, rather than replaces, an employer’s existing obligations. In addition to the above, an employer must provide a new employee with a written statement to the employee within two months of his or her commencement to include:
  • Place of work.
  • Job title and nature of the work.
  • Date of commencement of employment.
  • Hours of overtime work.
  • Sick leave or payment due to incapacity as a result of injury.
  • Conditions relating to pensions and pension schemes.
  • Paid leave (other than paid sick leave).
  • Notice periods.
  • Collective agreements.

 

Implied terms

Terms can be implied into an employment contract by legislation, law, custom and practice or the conduct of the parties. Once a term is implied into the contract, it will have the same effect as an express written term. If the implied term contradicts or is inconsistent with the express written wording of the contract, it may be deemed invalid. Examples of common implied terms include the following:
  • Employer and employee have a duty of care to each other and other employees.
  • Employee will act in the best interests of the employer.
  • Where a reference is provided, there is an implied term in the contract of employment that the reference is accurate and fair.
  • Where a bonus is paid annually, although not provided for in the contract, the payment of a bonus can be deemed an implied term of the contract over time.
  • Statutory terms implied into a contract (that is, no less than the minimum wage be paid).

 

Collective agreements

Collective agreements in Ireland are not binding to the employment relationship unless expressly incorporated into the contract of employment. Registered employment agreements (REAs) are collective agreements that relate to the pay or conditions of the employment of specified workers and are registered with the Labour Court. The Industrial Relations (Amendment) Act 2015 provides for a system of sectoral employment orders (SEOs), which replaces the previously used mechanism of REAs. An SEO can set the pay, pension or sick pay scheme for workers in an economic sector. It is binding across the sector to which it relates. There are currently two SEOs in force:
  • The SEO (Construction Sector) 2017 (which applies to craftspeople, construction operatives and apprentices employed in the construction sector).
  • The SEO (Mechanical Engineering Building Services Contracting Sector) 2018 (which applies to the mechanical engineering services contracting sector).

 

8. What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment?

 

Employers cannot unilaterally change the terms or conditions of employment. Both parties to a contract must consent to any proposed change. If a contract of employment is to be varied, then the affected employee must be given the details of the change in writing within one month of the date of its operation. It is advisable for employers to include an express right to vary an employee’s terms within their contract and to exercise any such variation reasonably.

 

Minimum wage

 

9. Is there a national (or regional) minimum wage?

 

The national minimum wage for most experienced adult employees is EUR9.80 per hour (as of 1 January 2019). However, there are some exceptions to the national minimum wage. For example, employees under the age of 18 are entitled to 70% of the minimum wage. Employees who are in the first year of employment having since reached the age of 18 are entitled to 80% of the minimum wage, with employees in the second year of their employment having since reached the age of 18 are entitled to 90% of the minimum wage. The national minimum wage applies to full-time, part-time, temporary and casual employees. Employees must be given pay-slips showing their wages and any deductions made. Sectoral employment orders (SEOs) and registered employment agreements (REAs) set out minimum wages in certain sectors that differ to the national minimum wage (see also Question 7). The Payment of Wages Act 1991 gives all employees a right to a pay slip which will show the gross wage and details of all deductions made by his or her employer.

 

Restrictions on working time

 

10. Are there restrictions on working hours? Can an employee opt out on either an individual or collective basis?

 

Working hours

The Organisation of Working Time Act 1997 (as amended) provides the maximum average working week is 48 hours, subject to certain exceptions. The average work hours may be taken over a four- (most common), six- or 12-month period (this is exceptional and applies to 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). Zero-hour contracts have recently been prohibited, by virtue of the Employment (Miscellaneous Provisions) Act 2018, except in cases of emergencies or short-term relief absence. The 2018 Act also introduced banded-hours contracts for employees whose actual hours do not reflect their contracted hours. Specifically, where hours per week over a 12-month period are not accurately set out in the contract, the employee will be entitled to request to be placed on a band of weekly hours.

 

Rest breaks

Every employee has a general entitlement to the following rest periods:
  • Daily. 11 consecutive hours’ daily rest per 24-hour period.
  • Weekly. One period of 24 hours’ rest per week, preceded by a daily rest period of 11 consecutive hours.
  • Rest breaks. Employees are entitled to:
    • 15 minutes where more than four and half hours have been worked; and
    • 30 minutes where more than six hours have been worked, which may include the first 15-minute break.

 

Shift workers

Special conditions apply to night workers. A night worker is an employee who works for at least three hours between midnight and 7am, and who works at night for at least half of their annual work. Employers must prevent night workers from working more than an average of eight hours in a 24-hour period. The average period for night workers is calculated over two months. Night workers are entitled to the same rest break provisions as normal workers (see above, Rest breaks).

 

Holiday entitlement

 

11. Is there a minimum paid holiday entitlement?

 

Minimum paid holiday entitlement

Holiday entitlement is governed by the Organisation of Working Time Act 1997 (as amended). All employees earn holiday entitlements from the time work is commenced. Holiday pay is earned against time worked. Employees are entitled to the greater of one of the following paid annual leave entitlements:
  • Four working weeks in a leave year in which the employee works at least 1,365 hours (unless it is a leave year in which the employee changes employment).
  • One-third of a working week for each month in the leave year in which the employee works at least 117 hours.
  • 8% of the hours the employee works in a leave year (but subject to a maximum of four working weeks).
Additional annual leave may be provided at the discretion of an employer. If an employee has worked for their employer for less than the full holiday year, holidays are granted on a pro rata basis.

 

Public holidays

There are nine public holidays in Ireland and most employees are entitled, at the discretion of their employer, to one of the following:
  • A paid day off on that day.
  • A paid day of within a month of that day.
  • An additional day of annual leave.
  • An additional day’s pay.
This does not apply to employees who have not worked for their employer for at least a total of 40 hours in five weeks before the public holiday.
The public holidays are as follows:
  • New Year’s Day (1 January).
  • St. Patrick’s Day (17 March).
  • Easter Monday.
  • First Monday in May, June, August.
  • Last Monday in October.
  • Christmas Day (25 December).
  • St. Stephen’s Day (26 December).

 

Illness and injury of employees

 

12. What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Who pays the sick pay and, if the employer, can it recover any of the cost from the government?

 

Entitlement to paid time off

There is no obligation for employers to pay employee sick pay. It is at the discretion of an employer to provide their own policy on sick leave and sick pay. An employer must include terms or conditions relating to an employee’s incapacity for work due to sickness or injury in their written statement (Terms of Employment (Information) Acts 1994 to 2014) (see also Question 7). If sick pay is included in the contract, there is often a limit on the period of sick pay entitlement. If there is no express or implied term in the contract of employment, the employee has no entitlement to sick pay and must rely wholly upon social welfare benefits.

 

Entitlement to unpaid time off

There is no statutory entitlement for employee sick leave or unpaid leave such as a career break or study leave in Ireland. Equality legislation obliges employers to provide employees with reasonable accommodation in respect of disabilities. Consequently, employers must provide a reasonable period of sick leave for employees with disabilities. The Workplace Relations Act 2015 provides that statutory annual leave accrues during periods of certified sick leave up to a maximum of 15 months from the end of the leave year in which it was accrued.

 

Recovery of sick pay from the state

Employees who are under 66 years of age and have obtained sufficient social insurance contributions (pay-related social insurance (PRSI)) are entitled to state illness benefit. An employee must apply for illness benefit within six weeks of becoming ill, regardless of whether or not they are in receipt of sick pay from their employer. There is no payment for the first six days of illness or any Sunday. If an employee is receiving sick pay from their employer, the employee must sign over the illness benefit payment to their employer for as long as sick pay continues. State illness benefit is paid up to a maximum of either:
  • Two years (624 payment days) if an employee has at least 260 weeks of paid reckonable social insurance contributions.
  • One year (312 payment days) if an employee has between 104 and 259 weeks of paid reckonable social insurance contributions.
Disability benefit and other forms of illness benefit are available for employees on longer terms of leave. Employers are not reimbursed directly by the state.

 

Statutory rights of parents and carers

 

13. What are the statutory rights of employees who are:
  • Parents (including maternity, paternity, surrogacy, adoption and parental rights, where applicable)?
  • Carers (including those of disabled children and adult dependants)?

 

Maternity rights

The Maternity Protection Acts 1994 and 2004 provide an entitlement of 42 weeks’ maternity leave for pregnant employees, composed of 26 weeks’ “ordinary maternity leave” and 16 weeks’ “additional maternity leave”, regardless of the employee’s period of service. At least two weeks of maternity leave must be taken before the baby’s expected date of birth and at least four weeks’ leave taken after the birth. An employee must notify her employer in writing of her intention to take maternity leave no later than four weeks before commencing maternity leave. Pregnant employees and employees who have recently given birth are entitled to time off work without loss of pay for ante-natal and post-natal care. Certain women in employment who are breastfeeding are entitled to take time off work each day in order to breastfeed (section 9, Maternity Protection (Amendment) Act 2004)The provision applies to all women in employment who have given birth within the previous six months. Employers are not obliged to provide facilities in the workplace to facilitate breastfeeding if the provision of these facilities would give rise to considerable costs. At the choice of her employer, an employee may therefore opt to:
  • Breastfeed in the workplace or express breast milk, where facilities are provided in the workplace by the employer.
  • Have her working hours reduced (without loss of pay) to facilitate breastfeeding where facilities are not made available.
The breastfeeding entitlement applies to mothers of babies under six months old.
There is no statutory obligation to pay an employee during maternity leave. An employee is entitled to state maternity benefit at a rate of EUR240 per week for the first 26 weeks of maternity leave, subject to the employee’s pay-related social insurance (PRSI) contributions. Employers are not obliged to provide further maternity pay/benefits in addition to state maternity benefit. An employee maintains the right to return to the same employment conditions and position held before maternity leave.
Since 1 October 2017, employees are entitled to increased maternity leave for premature births, equating to the duration between the actual date of birth of the premature baby and the date on which the maternity leave was expected to commence. Maternity benefit will also be paid for this period.

 

Paternity rights

The Paternity Leave and Benefit Act 2016 provides two weeks’ statutory leave and benefit for employees who are the relevant parents of children born or adopted. Paternity leave generally must be taken in one block of two weeks within the first six months following the birth or adoption placement. The term “relevant parent” is defined broadly to provide for fathers, adoptive fathers, civil partners, cohabitants and same-sex couples. Paternity benefit is payable by the state subject to an employee’s PRSI contributions. Employers are not obliged to provide further paternity pay/benefits in addition to state paternity benefit.
Employers are not obliged to pay paternity leave benefit. State paternity benefit is payable at a rate of EUR240 per week for two weeks.

 

Surrogacy rights

There is no Irish legislation covering the legal issues arising from surrogacy. As a result, no statutory entitlement to surrogacy leave or pay exists.

 

Adoption rights

An adopting mother and sole male adopter employees are entitled to take up to 40 weeks’ adoptive (24 weeks’ “ordinary adoptive leave” and 16 weeks’ “additional adoptive leave”) (Adoptive Leave Act 1995 (as amended)). A sole male adopter is defined as a male employee who is not an adopting father and in whose sole care a child is being placed. Employed adopting fathers are also entitled to leave in the unfortunate event of the adopting mother’s death. Since the enactment of the Adoption (Amendment) Act 2017 on 19 October 2017, any couple living together in a civil partnership or cohabiting together for at least three years may apply to adopt a child. There has been no amendment to the Adoption Leave Act in this regard, and so adoption leave remains as above.
Adoptive benefit is payable by the state at a rate of EUR240 per week for the first 24 weeks, subject to qualifying PRSI contributions. Employers are not obliged to provide further adoption pay/benefits in addition to state adoption benefit. Employees have a right to adoptive leave from employment without pay.

 

Parental rights

Parents are entitled to 18 weeks’ unpaid leave for each child under the age of eight (Parental Leave Acts 1998 to 2006). This is subject to modifications for an adopted child or a child with a disability or long-term illness. A person acting in loco parentisin respect of an eligible child is also eligible for parental leave. An employee is also entitled to force majeure paid leave in cases of family emergencies.
A new state paid leave scheme, known as the Parental Benefit Scheme, will be effective from November 2019 and will apply in addition to maternity and paternity leave (see Question 34).

 

Carers’ rights

Employees who have 12 months’ continuous service may, in limited circumstances, take at least 13 weeks and up to 104 weeks’ unpaid leave to provide full-time care for an incapacitated person. An application must be made to the Minister for Social Protection and a decision received before an employee is entitled to carer’s leave. Carer’s benefit is a short-term payment paid for up to 24 months to an employee who has made the required PRSI contributions. Alternatively, an employee may qualify for a carer’s allowance, which is a means-tested payment.

 

Continuous periods of employment

 

14. Does a period of continuous employment create any statutory rights for employees? If an employee is transferred to a new entity, does that employee retain their period of continuous employment? If so, on what type of transfer?

 

Statutory rights created

Specific employment legislation requires certain periods of continuous employment before particular benefits may be gained. For example, the Unfair Dismissal Acts 1977 to 2015 only apply to employees who have at least 12 months’ continuous service, subject to certain exceptions. A further example is the entitlement to a redundancy payment, which only arises on or after the completion of 24 months’ continuous service.

 

Consequences of a transfer of employee

Under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, an employee’s period of continuous service remains intact upon a transfer of an undertaking or business or part of that business (see Question 22Question 23 and Question 24).

 

Fixed term, part-time and agency workers

 

15. To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees? To what extent are part-time workers entitled to the same rights and benefits as full-time workers?

 

Temporary workers

The Protection of Employees (Fixed-Term Work) Act 2003 applies to most employees on fixed-term contracts. Fixed-term employees are entitled to be treated no less favourably than a comparable permanent employee, unless this treatment can be justified on both of the following objective grounds:
  • Its purpose is to achieve a legitimate objective of the employer.
  • It is appropriate and necessary to achieve that purpose.
There are some exceptions in relation to pension entitlements. An employer cannot employ an employee on a series of fixed-term contracts indefinitely.
The Unfair Dismissal Acts apply to fixed-term employees unless their contract of employment expressly excludes their application.

 

Agency workers

Agency workers are not entitled to all the employment rights afforded to employees engaged under a contract of employment; however, they do have the right to equal treatment and equal basic employment conditions provided for by the Protection of Employees (Temporary Agency Work) Act 2012. The Act does not cover employees of contractor companies and limited liability companies where the worker is the beneficial owner.

 

Part-time workers

The Protection of Employees (Part-Time) Work Act 2001 governs the treatment of part-time employees. Part-time employees have the right not to be treated less favourably than a comparable full-time employee regarding conditions of their employment, unless objectively justified. The two objective grounds are:
  • To achieve a legitimate objective of the employer and where such treatment is appropriate and necessary for that purpose.
  • Pensions.

 

Data protection

 

16. Are there any requirements protecting employee privacy or personal data? If so, what are an employer’s obligations?

 

Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation (GDPR)) came into effect on 25 May 2018. The purpose of the GDPR is to harmonise EU data privacy laws and regulate the processing of personal data relating to individuals within the EU. GDPR strengthens the rights of individuals and increases the obligations on organisations in how they collect and use personal data. In Ireland, the Data Protection Act 2018 was signed into law on 24 May 2018. The new 2018 Act, together with previous data protection legislation, is collectively known as the Data Protection Acts 1988 to 2018. Among its provisions, the 2018 Act established a new Data Protection Commission as the state’s data protection authority and implements derogations permitted under the GDPR into Irish law (for example, the digital age of consent being 16 years of age in Ireland). The Data Protection Commission has the power to conduct an inquiry (either with or without an accompanying investigation), which may result in an administrative fine or other corrective power applying to an organisation.
The GDPR applies to the processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not. Non-EU organisations processing the personal data of EU citizens must appoint a representative located in the EU. The GDPR only applies where personal data is processed, which is defined as data relating to an identifiable living person. Such data can be held on computers or in manual files. The term “processing” refers to any operation, or set of operations, performed on personal data. Processing includes storing, collecting, retrieving, using, combining, erasing and destroying personal data, and can involve automated or manual operations.

 

Employees’ data protection rights

An employee is entitled to have his or her personal information protected, used in a fair and legal way, and made available when requested. Under GDPR, an employee is considered a data subject and possesses the following rights:
  • Confirmation of whether or not personal data concerning him or her is being processed.
  • Where personal data concerning the data subject is being processed, a copy of his or her personal information.
  • Where personal data concerning the data subject is being processed, to know:
    • the purpose(s) of the processing;
    • the categories of personal data;
    • any recipient(s) of the personal data to whom the personal data has or will be disclosed (in particular, recipients in third countries);
    • the retention period of the personal data.
  • The right to raise a concern with the Data Protection Commission.
  • The source of the data subject’s personal data where it has not been collected from him or her.
  • The existence of automated decision-making, including profiling and meaningful information about how decisions are made, the significance and the consequences of processing.
There are a number of restrictions to the right of access, provided for by section 60 of the Data Protection Act 2018.
Employees, as data subjects, are entitled to make a subject access request (SAR), which is free of charge, subject to limitations and administration costs. SARs must be completed within one month of the request, however, this may be extended by two further months, where necessary, taking into account the complexity and number of requests.
A complaint may be made online to the Data Protection Commission for the failure of a data controller to comply with a SAR (www.dataprotection.ie).

 

Employers’ data protection obligations

Employers are considered data controllers under the GDPR and the Data Protection Act 2018, Data controllers are subject to onerous obligations in respect of processing the personal data and sensitive personal data of identifiable individuals.
Stronger safeguards are in place for “special categories of data” (previously known as “sensitive personal data”) under the GDPR and refers to the following types of data:
  • Racial or ethnic origin.
  • Political opinions.
  • Religious or philosophical beliefs.
  • Trade union membership.
  • Data concerning health.
  • Data concerning a person’s sex life or sexual orientation.
  • Genetic data.
  • Biometric data.
A data controller must be able to demonstrate, compliance (accountability) with certain data protection principles, and personal data must be:
  • Processed lawfully, fairly and in a way that is transparent to the data subject (lawfulness, fairness and transparency).
  • Collected, created or processed only for one or more specified, explicit and lawful purpose (purpose limitation).
  • Adequate, relevant and limited to what is necessary for those purposes (data minimisation).
  • Kept accurate and, where necessary, up-to-date (accuracy).
  • Retained no longer than is necessary (storage limitation).
  • Kept safe and secure (integrity and confidentiality).
These provisions are binding on every data controller. Any failure to observe these provisions will be a breach of the Data Protection Acts.
In order to process personal data, organisations must have a lawful reason to do so. The six lawful reasons for processing personal data are set out in Article 6 of the GDPR, and are:
  • Consent.
  • To carry out a contract.
  • To satisfy a legal obligation.
  • To protect the vital interests of a person.
  • For the performance of a task carried out in the public interest.
  • In the legitimate interests of a company/organisation (except where those interests contradict or harm the interests or rights and freedoms of the individual).
Personal data falling under these categories can only be processed under specific circumstances, which are described in Article 9(2) of the GDPR. Some of the key changes which employers need to be aware of are:
  • The time frame for dealing with data access requests is now 30 days.
  • Data breaches must be reported within 72 hours to the Data Protection Commissioner and to affected employees/individuals.
  • Employees will have “a right to be forgotten”.
  • Breaches can result in fines of up to EUR20 million, or 4% of total annual global turnover (whichever is greater will be applied).
Employers must ensure they have the necessary GDPR policies in place, including policies covering the transfer of data outside the EU in compliance with Chapter V of the GDPR. The security of personal data and special category data is of the utmost importance in the light of hefty fines that may be imposed for an infringement of data protection legislation.
The Data Protection Commission has produced guidelines to assist organisations with their data protection obligations (https://www.dataprotection.ie/en/organisations/know-your-obligations#).

 

Discrimination and harassment

 

17. What protection do employees have from discrimination or harassment, and on what grounds?

 

Protection from discrimination

The Employment Equality Acts 1998 to 2015 prohibit the direct and indirect discrimination of employees on nine grounds. There is no minimum period of service required to bring a claim under these Acts. The nine discriminatory grounds are:
  • Gender.
  • Marital/civil status.
  • Family status.
  • Sexual orientation.
  • Religious belief.
  • Age.
  • Disability.
  • Race.
  • Membership of the Traveller community.

 

Protection from harassment

The Employment Equality Acts prohibit harassment and sexual harassment on any of the above grounds of discrimination in relation to employment. The common law principles of negligence and breach of contract also apply in the case of workplace harassment. An employer is liable for acts of harassment which an employee commits during the course of their employment. There is no minimum period of service required to bring such a claim. Employers must have a policy and procedure to deal with and prevent harassment at work alongside an effective grievance procedure. The Code of Practice on Sexual Harassment and Harassment at Work provides a practical guide to employers (www.irishstatutebook.ie/eli/2012/si/208/made/en/print).

 

Whistleblowers

 

18. Do whistleblowers have any protection?

 

The Protected Disclosures Act 2014 provides protection from penalisation and dismissal where “workers” disclose one or more “relevant wrongdoings” or potential wrongdoings in the workplace. The disclosure must be a disclosure of information and not a mere allegation or expression of concern which, in the reasonable belief of the worker, tends to show one or more relevant wrongdoings which came to the attention of the worker in connection with the worker’s employment. The definition of workers covers current and former employees. There is no minimum period of service required to bring a claim. A protected disclosure includes a disclosure of relevant information made before or after the date of the passing of the Act, within the state or elsewhere.

 

Termination of employment

 

19. What rights do employees have when their employment contract is terminated?

 

Notice periods

The contract of employment must contain an agreed notice period. In the absence of a contractual notice period, an employer must give “reasonable” notice prior to the termination of an employee’s contract. If the notice period given is less than the statutory notice period, the statutory notice period prevails. The Minimum Notice and Terms of Employment Acts 1974 to 2005 apply to employees who have completed 13 weeks’ continuous service with their employer. The following minimum notice periods apply:
  • 13 weeks’ to less than two years’ service: one week.
  • Two years’ to less than five years’ service: two weeks.
  • Five years’ to less than ten years’ service: four weeks.
  • Ten years’ to less than 15 years’ service: six weeks.
  • More than 15 years’ service: eight weeks.
The Acts do not preclude either party from waiving their right to notice or accepting payment in lieu of notice. The employment may be legitimately terminated without notice due to the gross misconduct of either party.

 

Severance payments

A contract of employment may provide for a severance payment in the event of a termination by consent. Most employers require the employee whose contract is being voluntarily terminated to sign a severance agreement relinquishing the employee’s right to take any future legal action against their employer. Severance packages are distinct from redundancy situations.

 

Procedural requirements for dismissal

The Unfair Dismissal Acts 1977 to 2015 require an employer to act “reasonably” in relation to an employee’s dismissal. To validly dismiss an employee, the employer must have a clear documented procedure in place and follow that procedure fully. Employees must be afforded full and fair procedures in accordance with natural justice in the dismissal process. The Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000 contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice for dismissal.

 

20. What protection do employees have against dismissal? Are there any specific categories of protected employees?

 

Protection against dismissal

Unfair dismissal. An employee may challenge their dismissal under the Unfair Dismissal Acts. A dismissal is automatically deemed to be unfair, placing a positive onus on the employer to prove otherwise. An unfair dismissal claim is brought to the Workplace Relations Commission.
Wrongful dismissal. In cases of wrongful dismissal, an employee can bring a breach of contract claim in the civil courts. In certain circumstances, such as the employer’s defective fair procedures, an employee can bring an injunction to restrain the wrongful dismissal and seek to be reinstated to their employment position.
Discriminatory dismissal. If an employee is discriminatorily dismissed on one of the nine grounds of discrimination, the employee can bring a claim under the Employment Equality Acts (see below, Protected employees) to the Workplace Relations Commission and, in limited circumstances, to the Circuit Court.
Constructive dismissal. When an employee terminates the contract of employment with or without notice due to the employer’s adverse conduct, the employee can bring a claim for constructive dismissal to the Workplace Relations Commission. In the case of constructive dismissal, the burden of proof is reversed and the employee must prove that he or she was constructively dismissed.

 

Protected employees

In general, an employee must have at least 12 months’ continuous service to rely on the Unfair Dismissal Acts. A dismissal is automatically deemed to be unfair if it was by reason of:
  • Pregnancy.
  • Religion.
  • Politics.
  • Race.
  • Colour.
  • Sexual orientation.
  • Age.
  • Trade union membership.
  • Unfair selection for redundancy.
  • Making a protected disclosure under the Protected Disclosures Act 2014 (seeQuestion 18).

 

Redundancy/layoff

 

21. How are redundancies/layoffs defined, and what rules apply on redundancies/layoffs? Are there special rules relating to collective redundancies?

 

Definition of redundancy/layoff

An employee can be dismissed by his or her employer by reason of redundancy if, for one or more reasons not related to the employee concerned, the employee’s dismissal is attributable “wholly or mainly” to one of the five situations outlined in the Redundancy Payment Acts 1967 to 2014:
  • Change in purpose or place of business.
  • Reduction in the business’s requirements.
  • Diminution in the required number of employees.
  • Change in work methods.
  • Change in work.

 

Procedural requirements

The selection process for redundancy must be carried out in an objective, fair and transparent manner by the employer. The employer must be able to demonstrate that the particular employee was compared to other employees who were considered during the redundancy selection. It is important that the employer’s conduct is reasonable at all times throughout the redundancy process. Employers must consult with employees either individually or collectively to notify them of the redundancy situation and process. At least two weeks’ written notice of the redundancy must be given to an employee. The statutory notice period depends on an employee’s period of service. Part A of Form RP50 must be given to the employee.

 

Redundancy pay

The Redundancy Payment Acts impose a statutory obligation on employers to pay compensation to employees who are dismissed by reason of redundancy or layoff. To qualify for the statutory payment, an employee must be aged over 16 years, with at least two years’ continuous service and whose employment has been terminated by reason of redundancy. The statutory redundancy lump sum entitlement is calculated as follows:
  • Two weeks’ pay for every year of service, subject to the statutory ceiling of EUR600 per week.
  • One bonus week’s gross pay.
Incomplete years of service are taken into account on a pro rata basis.

 

Collective redundancies

The Protection of Employment Acts 1977 to 2000 set out specific notification and consultation requirements regarding collective redundancies. Employers who are planning collective redundancies must inform and consult their employees at least 30 days before the first dismissal is scheduled. The Minister for Enterprise, Trade and Employment must also be notified at least 30 days before any dismissals take effect. A collective redundancy means the dismissal on grounds of redundancy over a period of 30 consecutive days of:
  • At least five employees where 21 to 49 employees are employed.
  • At least ten employees where 50 to 99 employees are employed.
  • At least 10% of the employees where 100 to 299 employees are employed.
  • At least 30 employees where 300 or more employees are employed.
More onerous obligations exist for employers in situations of exceptional collective redundancies. An exceptional collective redundancy is a dismissal, by reason of compulsory collective redundancy, which is not regarded as a redundancy, where the dismissed employees are replaced by new employees doing the same job and performing the same duties for a lesser wage.

 

Employee representation and consultation

 

22. Are employees entitled to management representation (such as on the board of directors) or to be consulted about issues that affect them? Is employee consultation or consent required for major transactions (such as acquisitions, disposals or joint ventures)?

 

Management representation

The Worker Participation (State Enterprises) Acts 1977 to 2001 provide for employee representation and participation at board and sub-board level in certain state enterprises. These rights are limited and unless there is an agreement in place, employees will generally have no such entitlement.

 

Consultation

The Transnational Information and Consultation of Employees Act 1996 sets out procedures for consulting and informing employees in relation to transnational matters affecting their work organisation. The Act applies to businesses with over 1,000 employees in the EEA and at least 150 employees in each of two EEA states. Employers must establish a Special Negotiating Body to negotiate with employees. In particular, the Act provides for the establishment of European Works Councils (EWCs) in multinational companies in order to bring together employee representatives from different EU countries to discuss transnational issues of concern held by employees.
The Employees (Provision of Information and Consultation) Act 2006 imposes consultation obligations on businesses in Ireland with over 50 employees during a transfer of undertakings.

 

Major transactions

There is no legal requirement to consult with employees ahead of a share sale unless there is an agreement to do so in place. Best practice for employers is to communicate with its employees regarding a proposed transaction. The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 govern transactions involving the sale of businesses or assets. The original employer and new employer must consult with their employees no later than 30 days before the transfer date.
The European Communities (Cross-Border Mergers) Regulations 2008 provide for arrangements to be established for employee participation in an Irish successor company.

 

23. What remedies are available if an employer fails to comply with its consultation duties? Can employees take action to prevent any proposals going ahead?

 

Remedies

Failure to comply with the Protection of Employment Acts, the Transnational Information and Consultation of Employees Act 1996, and the Employees (Provision of Information and Consultation) Act 2006 can result in a criminal conviction (see also Question 21 and Question 22).
A complaint regarding a breach of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can be made by employees, trade unions and certain others (for example, a staff association or excepted body on behalf of and with the employee’s consent) to the Workplace Relations Commission. Compensation not exceeding four weeks’ remuneration can be awarded for a breach of the information and consultation obligations, and compensation not exceeding two years’ remuneration may be awarded for breach of any other provision of the Regulations, in addition to reinstatement or re-engagement, if deemed appropriated.

 

Employee action

Employee action cannot be invoked in an effort to prevent the progress of a proposal.

 

Consequences of a business transfer

 

24. Is there any statutory protection of employees on a business transfer?

 

Automatic transfer of employees

Under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, the transfer of employees resulting from a business transfer is automatic.

 

Protection against dismissal

The dismissal of an employee by reason of transfer is prohibited under the 2003 Regulations and is deemed unfair unless the dismissal can be justified for “economic, technical or organisational reasons entailing changes in the workforce”.

 

Harmonisation of employment terms

The 2003 Regulations stipulate that all employment contractual rights and obligations along with collective agreements are automatically transferred to the transferee (the new purchaser), with the exception of pensions. However, if there is a pension scheme in operation at the time of the transfer, the 2003 Regulations provide:
  • Occupational pension schemes covered by the Pension Acts 1990 to 2002 are protected by those Acts.
  • Other pension schemes must be protected by the transferee.
Harmonisation of employment terms is implemented post-transfer with the agreement of employees.

 

Employer and parent company liability

 

25. Are there any circumstances in which:
  • An employer can be liable for the acts of its employees?
  • A parent company can be liable for the acts of a subsidiary company’s employees?

 

Employer liability

The common law principle of employer’s vicarious liability holds employers liable for the acts and omissions of their employees occurring in the course of their employment (Hurley v An Post [2017] IEHC 568). There is no necessity to find fault on behalf of the employer. Liability can also be imposed on an employer under the Employment Equality Acts 1998 to 2015, where employers are vicariously liable for the discriminatory acts of their employees committed in the course of their employment. It is a defence for an employer to show that he or she took reasonable steps to prevent the acts of discrimination.

 

Parent company liability

At present, parent companies and subsidiaries are treated as separate economic entities in Ireland and a parent company cannot be held liable for the acts of the employees of its subsidiary. However, in the circumstances where a parent company is deemed to have assumed a duty of care, it may be held liable for the act or omission of the subsidiary company’s employees.

 

Employer insolvency

 

26. What rights do employees have on the insolvency of their employer? Is there a state fund which guarantees repayment of certain employment debts?

 

Employee rights on insolvency

Employer insolvency in Ireland is a complex area of law determined by the particular circumstances of an employer’s insolvency. The Protection of Employees (Employers’ Insolvency) Acts 1984 to 2004 regulate this area of law. Generally, the appointment of an examiner or receiver to a company does not automatically terminate existing contracts of employment. However, if a receiver has been appointed by a court, the contract of employment is automatically terminated. Where a company ceases to trade, this amounts to a dismissal of the employee. The appointment of a liquidator may lead to termination but the employment relationship will continue if the liquidator is given the power to continue to trade and proceeds to do so. Where an employee is dismissed, either by the receiver’s appointment or actions, the employee’s contractual and statutory entitlements are maintained.
Certain employee debts, which are limited, are given priority in the distribution of assets after the payment of the secured creditors and the liquidator’s/official assignee’s remuneration and expenses. This only occurs where there are sufficient assets to discharge the amounts due.

 

State guarantee fund

The Insolvency Payments Scheme protects pay-related entitlements owed to employees who lose their employment due to employer insolvency. The scheme enables employees to claim limited arrears of pay, holiday pay, pay in lieu of statutory notice and other entitlements owed by their employer. An employer must go into official liquidation for employees to come within the scheme’s ambit. The state has also created the Redundancy Payments Scheme where the state will discharge the statutory redundancy entitlements of employees in the event of employer insolvency. Payments are made from the state Social Insurance Fund.

 

Health and safety obligations

 

27. What are an employer’s obligations regarding the health and safety of its employees?

 

Employers must provide employees with a safe system and place of work. The common law duty of care requires employers to protect employees from reasonably foreseeable injury. This area of the employment relationship is also governed by the Safety, Health and Welfare at Work Act 2005 (as amended) and imposes a legal duty on employers to identify hazards in the workplace and to carry out a risk assessment of those hazards. Employers are also required to prepare written safety statements in a form and language that is understood by its employees. This is not confined to the two official state languages: Gaeilge (Irish) and English.
It is a criminal offence to breach the Safety, Health and Welfare at Work Act 2005 (as amended). Employees are entitled to bring civil claims against their employers for any loss or injury suffered as a result of an accident at work. The penalties on summary conviction are a fine not exceeding EUR5,000 per charge or imprisonment for a term not exceeding 12 months or both, and on conviction on indictment to a fine not exceeding EUR3 million per charge or imprisonment for a term not exceeding two years or both.

 

Taxation of employment income

 

28. What is the basis of taxation of employment income for:
  • Foreign nationals working in your jurisdiction?
  • Nationals of your jurisdiction working abroad?

 

Foreign nationals

Foreign nationals who are resident but not domiciled (living permanently) in Ireland are liable to Irish income tax on:
  • Income generated in Ireland.
  • Income from a foreign source of employment attributable to the performance of those employment duties within the state.
  • Income from a foreign employment related to duties performed outside the state. If an individual is not domiciled within the state, this income is only taxable on the income brought into the state.
An individual who is non-resident, non-ordinarily resident and not domiciled in Ireland for the tax year in respect of which tax liability is to be calculated is liable to Irish tax on Irish-source income and income derived from employment effected in the state. If an individual is resident in Ireland for three consecutive tax years, he or she is deemed to be ordinarily resident from the beginning of the fourth tax year.
Employees may be entitled to credit for foreign tax paid. Particular rules apply to temporary assignees who may be on short-term business visits to the state.

 

Nationals working abroad

Irish nationals resident, ordinarily resident or domiciled within Ireland, are liable to income tax on their total income, wherever it arises. Certain relief may be claimed for income tax paid abroad. An individual who is non-resident for a particular tax year but is ordinarily resident in the state for the tax year in respect of which tax liability is to be calculated, is treated for that year in the same manner as an individual who is tax resident but is not taxable on:
  • Income derived from a trade or profession carried on outside the state.
  • Income derived from a non-public office or non-public employment, all duties having been performed outside the state (except incidental duties).
  • Other foreign income not exceeding EUR3,810 (if it is more than EUR3,810, the full amount is taxable).
Directors of an Irish incorporated company must pay income tax regardless of residency status or location of the performance of their duties.

 

29. What is the rate of taxation on employment income? Are any social security contributions or similar taxes levied on employers and/or employees?

 

Rate of taxation on employment income

The standard rate of tax for 2019 is 20% on income up to a certain threshold. All earnings above this threshold are taxed at the higher rate of 40%. The thresholds are as follows:
  • Single, widowed or a surviving civil partner without qualifying dependent children: up to EUR35,300 taxed at 20%. The balance is taxed at 40%.
  • Single, widowed or a surviving civil partner qualifying for Single Person Child Carer Credit: up to EUR39,300 taxed at 20%. The balance is taxed at 40%.
  • Married or in a civil partnership (one spouse or civil partner with income): up to EUR44,300 taxed at 20%. The balance is taxed at 40%.
  • Married or in a civil partnership (both spouses or civil partners with income): up to EUR70,600 taxed at 20%. The balance is taxed at 40%.
Certain tax credits, allowances and reliefs are available on income tax.

 

Universal social charge (USC)

The USC is tax payable on gross income and pension contributions. The 2019 rates of USC are:
  • 0.5% on the first EUR12,012.
  • 2.0% on the next EUR7,862.
  • 4.75% on the next EUR50,170.
  • 8% on the balance above EUR70,044.

 

Social security contributions

There are both employer and employee components to pay-related social insurance (PRSI) contributions. Employees are divided into social insurance classes with most employees falling within the Class “A” band. Class A contributions for 2019 are as follows:
  • Employer PRSI on salaries less than EUR386 per week: 8.7%.
  • Employer PRSI on salaries greater than EUR386.01 per week: 10.95%.
  • Employee PRSI is payable at 4% on salaries if earnings are greater than EUR352.01 per week.
PRSI credits are available and depend on gross weekly earnings.

 

Bonuses

 

30. Is it common to reward employees through contractual or discretionary bonuses? Are there restrictions or guidelines on what bonuses can be awarded?

 

Employers can choose to operate a bonus scheme for employees. It is at the discretion of the employer how the bonus scheme should operate. In addition to multinationals operating in Ireland, indigenous companies and professional service provider firms will commonly have bonus schemes as part of an employee’s remuneration package.

 

Intellectual property (IP)

 

31. If employees create IP rights in the course of their employment, who owns the rights?

 

Employee IP rights are governed and protected by the Patents Act 1992 (as amended), the Trade Marks Act 1996 (as amended) and the Copyright and Related Rights Act 2000 (as amended). Generally, the person who creates the IP is the first owner and can decide how it is used. Work created by an employee in the course of their employment belongs to the employer, unless otherwise agreed.

 

Restraint of trade

 

32. Is it possible to restrict an employee’s activities during employment and after termination? If so, in what circumstances can this be done? Must an employer continue to pay the former employee while they are subject to post-employment restrictive covenants?

 

Restriction of activities

It is common for contracts of employment to contain express terms relating to the restraint of trade during the course of employment. However, if there is no express provision within the contract of employment, an employee is free to take up additional employment.

 

Post-employment restrictive covenants

Any attempt to restrict an employee after the termination of the employment relationship is presumed to be unenforceable unless the contract of employment contained a clause restricting trade which is both:
  • Reasonable as between the parties (a restrictive covenant may be deemed unreasonable and therefore unenforceable if the period of restriction is too long or the geographical area it applies to is too extensive).
  • Consistent with the public interest (for example, if the covenant is anti-competitive then this would be contrary to the public interest).
There is no statutory requirement for an employer to continue to pay a former employee bound by a post-employment restrictive covenant.

 

Relocation of employees

 

33. Can employers include mobility clauses in employment contracts, or take any other measures, to ensure that employees are obliged to relocate?

 

An employer is entitled to include a mobility clause into the employment contract (Earley v HSE [2017] IECA 158 (also see Question 8)). The Terms of Employment Information Acts state that if an employee is required to work outside the state for a minimum period of one month, the employer must provide the employee with a statement to include:
  • The period of employment outside the state.
  • The currency in which the employee is to be remunerated in respect of that period.
  • Any benefits in cash or kind for the employee while working outside the state.
  • The terms and conditions applying to the employee’s repatriation.

 

Proposals for reform

 

34. Are there any proposals to reform employment law in your jurisdiction?

 

Brexit

On 23 June 2016, the UK voted to leave the EU. The UK is schedule to depart the EU on exit day. At the time of writing, no deal has been agreed between the EU and the UK regarding the terms of the UK’s withdrawal. Vast speculation still continues regarding the potential extension of Article 50, which would extend the period of the UK’s departure from the EU. In the event of a “no deal” Brexit, the UK would sever ties with the EU removing a transition period and failing to guarantee citizens’ right of residence. Significant fears remain regarding the potential disruption the UK’s a departure could cause to businesses; especially to hauliers, food retailers and health services. In the event of a “no deal”, the UK would be forced to trade with the EU under World Trade Organization rules. Brexit has caused uncertainty and potential turmoil for employers and employees alike. It specifically casts doubt in relation to the free movement of workers and immigration, the potential diverging of European and British employment laws, cross-border remuneration, the effect on pension schemes and the risk to employers and employees in cross-border mergers and acquisitions. Future bilateral agreements between the UK and Ireland will require the consent of the EU.
On 24 January 2019, the Irish Government published the general scheme of the Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Bill 2019 (Brexit Bill). The Brexit Bill was enacted in the event of a “no deal” Brexit. The Brexit Bill spans 17 parts and focusses on the broad themes of protecting the citizen and supporting the Irish economy, enterprise and jobs. Specific provision will be made for contingencies in the areas of health, energy, financial services, taxation, transport, education, employment and justice. The Brexit Bill was enacted on the 17 March 2019.

 

Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017

This Bill proposes to initially require publication of male and female employee data in both public and private sector entities with over 250 employees. This threshold will gradually fall to include companies with 50 employees. In particular, the Bill would require employers to publish information concerning mean hourly rates of pay, median hourly rates of pay, mean bonus pay, median bonus pay, the proportions of employees who receive bonus payments and the proportions of employees who fall into the lower, lower middle, upper middle and upper quartile pay bands. The Bill further proposes to give the Irish Human Rights and Equality Commission enforcement powers, permitting the Commission to apply to the Circuit Court for an order requiring employers to complete pay reviews on a periodic basis and to publish information. Employer non-compliance may amount to a criminal offence. A concerned employee will be able apply to the Workplace Relations Commission for an order requiring compliance.

 

Parental Leave (Amendment) Bill 2017

This Bill proposes to extend parental leave entitlement to 26 weeks (six months) in respect of each child. The additional eight weeks provided under the legislation will be made available to those parents who have already availed of the existing 18-week entitlement. The Bill further proposes to increase the age of the child up to which parental leave can be taken from eight to 12 years of age.

 

Parental Benefit Scheme

The Parental Benefit Scheme will be introduced in November 2019 and will allow employees two weeks’ paid parental leave for each parent of a child in their first year. This will be in addition to current statutory leave entitlements. The Irish Government proposes to increase the further two weeks’ paid parental leave to seven extra weeks over time.

 

Companies (Corporate Enforcement Authority) Bill

The Companies (Corporate Enforcement Authority) Bill seeks to amend the provisions of the Companies Act 2014 with respect to the structure of the Office of the Director of Corporate Enforcement. The Bill will establish a new independent agency, the Corporate Enforcement Authority, to investigate breaches of company law. The Corporate Enforcement Authority will have the same functions and powers as the Director of Corporate Enforcement, with modifications to reflect the new proposed agency structure.

 

Central Bank (Amendment) Bill

The Central Bank (Amendment) Bill aims to tackle banking culture as well as other matters. The Central Bank’s proposed framework is based upon four pillars, being:
  • Conduct standards.
  • Senior executive accountability regime.
  • Streamlined enforcement processes.
  • Stronger fitness and probity requirements.
The Bill creates an offence of “providing false or misleading information” with a possible penalty of five years’ imprisonment or a fine of up to EUR250,000. The Central Bank will be empowered by the Bill to take action against an individual notwithstanding the innocence of the employing institute.

 

Online resources

 

Citizens Information

Description. Information on public services and entitlements of citizens in Ireland.

 

Department of Business and Enterprise Ireland

Description. Information on enterprise, innovation, regulation of business and protection of workers.

 

Department of Employment Affairs and Social Protection

Description. Information on pay-related social insurance (PRSI), redundancy and employment services.

 

Irish Development Agency (IDA)

Description. State agency website responsible for foreign direct investment (FDI) in Ireland.

 

Irish Statute Book

Description. Website containing Irish legislation.

 

Revenue Commissioners

Description. Website containing general tax information.

 

Workplace Relations Commission

Description. Website containing information on employment law rights.

 

Contributor profiles

 

Peter Benson, Partner

 

O’Connor Solicitors

T +3536992222
F +3536766764
peter.benson@oclegal.ie 
www.oclegal.ie
Professional qualifications. Solicitor qualified in Ireland in 2004.
Areas of practice. Employment and employee benefits; commercial law including commercial litigation; property.
Non-professional qualifications. Bachelor of Arts, University College Dublin.
Recent transactions
  • Acting for numerous employer-clients including private companies and multinationals.
  • Acting on behalf of representative bodies and unions on behalf of their members.
Languages. English
Professional associations/memberships. Law Society of Ireland; Dublin Chamber of Commerce; Dublin Solicitors Bar Association; Association of Regulatory and Disciplinary Lawyers.

 

John O’Connor, Partner

 

O’Connor Solicitors

+3536764488
+3536766764
john.oconnor@oclegal.ie 
www.oclegal.ie
Professional qualifications. Solicitor qualified in Ireland in 1992.
Areas of practice. Employment law and employment litigation; commercial law including commercial litigation; company law.
Non-professional qualifications. Bachelor of Civil Law, University College Dublin.
Recent transactions
  • Acting on behalf of healthcare representative body in four lead cases to determine contractual rights across hospital sector which would have value estimated by the state in excess of EUR350 million.
  • Acting for multi-national employer-clients in employment disciplinary matters, defence of unfair dismissal claims.
  • Acted in Appeal to High Court on point of law concerning section 77 of the Employment Equality Act 1998.
  • Advice to company in connection with termination of employment of director and shareholder.
  • Lectured Law Society of Ireland 2017 Diploma on Employment Law on Policies and Procedures in the Workplace.
Languages. English
Professional associations/memberships. Law Society of Ireland; Dublin Chamber of Commerce; Dublin Solicitors Bar Association; Association of Regulatory and Disciplinary Lawyers.

 

Ruth O’Connor, Partner

 

O’Connor Solicitors

T +3536764488
F +3536766764
ruth.oconnor@oclegal.ie 
www.oclegal.ie
Professional qualifications. Solicitor qualified in Ireland in 1987.
Areas of practice. Employment and employee benefits; regulatory law; commercial property transactions.
Non-professional qualifications. Bachelor of Civil Law, University College Dublin.
Recent transactions
  • Acting for numerous employer-clients including private companies and multinationals on a range of employment issues.
  • Acting on behalf of representative body and unions in the public sector healthcare area on behalf of their members (one such union has in excess of 35,000 members).
  • Advising in relation to grievance and disciplinary policies and procedures, and workplace investigations and currently advising on injunction proceedings seeking to prevent the issuing of an investigation report.
  • Advising in relation to claim to Workplace Relations Commission involving dispute as to whether individual was employee or a contractor.
  • Drafting Agreements in respect of senior management positions in financial services area consultancy agreement with a registered charity.
Languages. English
Professional associations/memberships. Law Society of Ireland; Dublin Solicitors Bar Association; Association of Regulatory and Disciplinary Lawyers.

 

Niall Enright, Solicitor

 

O’Connor Solicitors

T +3536764488
F +3536766764
niall.enright@oclegal.ie 
www.oclegal.ie
Professional qualifications. Solicitor qualified in Ireland in 2017.
Areas of practice. Employment and employee benefits; regulatory law; commercial law, including commercial litigation.
Non-professional qualifications. Bachelor of Law & Accounting, University of Limerick.
Recent transactions
  • Acting for numerous employer-clients including private companies and multinationals.
  • Acting on behalf of representative bodies and unions on behalf of their members.
Languages. English, Irish
Professional associations/memberships. Law Society of Ireland; Dublin Chamber of Commerce; Dublin Solicitors Bar Association; Association of Regulatory and Disciplinary Lawyers.
END OF DOCUMENT

RESOURCE ID 3-525-7135

© 2019 THOMSON REUTERS. ALL RIGHTS RESERVED.

 

CHARITIES AND PAYMENT OF RATES – CHANGES AFOOT

It is a principle of the law relating to the payment of rates that properties are rateable unless specifically exempted. Under the Valuation Act 2001 only certain limited exemptions were available to Charities and Charitable Organisations as reflected in several decisions of the Valuation Tribunal.  In particular, religious Charitable Organisations could only avail of an exemption where the building or part of a building was used exclusively for the purposes of public religious worship.  Although there was an exemption for lands or buildings occupied by a Charitable Organisation using same exclusively for charitable purposes, what constituted a “Charitable Organisation” was defined and interpreted narrowly, advancement of religion not being considered as a basis for exemption unless it involved public worship.  The definition of a “Charitable Organisation” was recently amended by the Valuation (Amendment) Act 2015 (the 2015 Act) which now defines a “Charitable Organisation” by reference to Registered Charities under the Charities Act 2009 (the 2009 Act).

Following the introduction of the 2015 Act the Jesuit Missions Trust sought an exemption from Rates on the basis that it was a Charitable Organisation, a position opposed by the Commissioner of Valuations. Upon appeal, the Valuation Appeals Tribunal held in favour of the Jesuit Mission Trust, determining that advancement of religion was covered under the definition of a Charitable Organisation introduced in 2015, reference being required to the 2009 Act.   Charities for the advancement of religion and those using land exclusively for charitable purposes (otherwise than for private profit) may now, depending on the facts of their particular case, be able to avail of a broader exemption from rates and, as such, should review their position regarding their activities and the payment of rates.

The Jesuit Mission Trust was represented by O’Connor Solicitors, Mr. Paul Gallagher, S.C., Mr. Jonathan Miller, B.L., and advised by Messrs. GVA Donal O’Buachalla Limited.

 

Queries to John O’Connor

Managing Partner

O’Connor Solicitors

 

Successful outcome to Consultants Contracts litigation

“Delighted to be part of what was a great contract case. Thanks to the IMO and the Doctors for their instructions and to our whole team including Counsel Michael Cush SC and Barra Faughnan BL, our witnesses, and to Johnson Hana and Reveal Data on the Discovery.”

John O’Connor, Managing Partner

The firm’s managing partner, John O’Connor, expresses his thanks to everyone involved in the breach of contract litigation involving Ireland’s Hospital Consultants, the HSE, Minister for Health, Minister for Finance and the Minister for Public Expenditure and Reform.   John has led the team through this lengthy and complex litigation which culminated in the matter being successfully settled on Friday 15th June.   Click on the link below to read the Irish Times report on the case.

 

https://www.irishtimes.com/news/crime-and-law/consultants-set-for-200m-back-pay-after-contract-cases-settled-1.3531744#.WyUACIfrHkw.linkedin

 

Thomson Reuters Practical Law Global Guide Irish Chapter – Employment and Employee Benefits in Ireland – Overview

An article by Peter Benson, John O’Connor, Ruth O’Connor and Antonia Melvin of O’Connor Solicitors

The Prohibition on a Company Financing the Purchase of its own Shares

The prohibition on a company offering financial assistance for the acquisition of its own shares represents one of the easiest ways in which a company can inadvertently breach the rules and regulations provided for in the Companies Act 2014. Careful consideration of this rule is required as a company acting in breach of the rule exposes itself to a range of both criminal and civil consequences.

The Rule

The rule is provided for in section 82 of the Companies Act 2014 and prohibits a company from directly or indirectly giving any financial assistance for the purpose of acquiring any shares in the company. Where a company is a subsidiary company this rule applies equally to parent companies. In practice this rule operates so as to cover almost any form of loan, guarantee or the provision of security.

An example of this rule in operation can be seen in the prosecution of two former Directors of Anglo Irish Bank where the directors approached ten of the bank’s top customers and offered them loans to purchase shares in the bank so as to stabilise the bank’s share price.

The Summary Approval Procedure

A transaction which would otherwise fall foul of the rule can be validated by the Summary Approval Procedure (SAP) which replaces the older validation process sometimes referred to as a ‘whitewash’. The SAP process requires a meeting of the board of directors, resulting in the directors making a declaration as to the nature, circumstances and purpose of the transaction as well as the solvency of the company. This declaration is then attached to a notice for a shareholder meeting at which the transaction is approved of by the passing of a special resolution (75% or more in favor) of the members which is then delivered to the Registrar of Companies.

Distributable Profits

In addition to the SAP the Companies Act provides for a number of exceptions to the rule. Section 105 allows a company to acquire its own shares by purchasing them out of the distributable profits of the company. This action must be authorised by either the constitution of the company, the rights attaching to the shares in question or by a special resolution of the company. Once the company has acquired it’s own shares it may cancel them or hold them as treasury shares. An important distinction must be drawn between a company acquiring it’s own shares, which is an important aspect of capital maintenance and is regulated by the Companies act, and a company offering financial assistance to another for the acquisition of it’s own shares as prohibited by the rule in section 82.

Other Exceptions

The Act provides for certain exceptions in the cases of:

  • Discharging lawfully incurred debts or refinancing.
  • Lending money as part of the ordinary business of the company (not applicable in the prosecution of the Anglo Irish Bank Directors as the primary purpose of the transaction was to stabalise the share price).
  • Representations, warranties or indemnities.
  • The payment of fees, commissions or expenses.
  • Where the primary purpose of the transaction is not the purchase of shares, for example where it is incidental to some larger purpose of the company and is done in good faith.

Criminal and Civil Consequences

Where a company contravenes this rule the company and every officer of the company who acted in contravention will be guilty of a category 2 offence which can result in up to five years imprisonment. For example, the Directors of Anglo Irish Bank were sentenced to 240 hours of community service. This light sentence was justified on the basis that the financial regulator had essentially given the “green light” to the transaction.

A Director who makes a declaration as to the solvency of the company for the purposes of engaging the in SAP process without having reasonable grounds for the making of the declaration exposes himself to personal liability for any and all of the debts of the company under section 210 (1) of the Act in addition to the usual rules for reckless trading.

Where a transaction is entered into by a person who has notice of the fact that they have received the financial assistance for the purpose of acquiring shares in the company the company can seek to void the transaction. This may be of particular relevance if a company goes into liquidation, the liquidator (on behalf of the company) could seek to set aside the transaction so as to maximise the assets of the company.

For further information concerning Company Financing please contact:

John C. O’Connor
Partner
O’Connor Solicitors
8 Clare Street
Dublin 2
Tel: 6764488
E: john.oconnor@oclegal.ie

 

 

Guide to GDPR

Guide to the GDPR – Outline of Stringent New Data Protection Obligations

The EU General Data Protection Regulation (GDPR) comes into force across the EU on 25th May 2018. The Regulation dramatically increases the obligations and responsibilities of businesses and organisations which control or process data. As these new obligations and responsibilities are paired with severe new sanctions, businesses should take the time to ensure their compliance in advance of the Regulation coming into force.

Who is Affected

The Regulation is binding on businesses and organisations that are involved in controlling or processing the personal data of individuals in the EU regardless of the location of the company or the location of the data processing. Although the situation is somewhat complicated by Brexit, the UK government has indicated that it will implement equivalent or alternative regulations that will largely follow the GDPR.

Personal data is defined so broadly as to cover any information that can be used to directly or indirectly identify a person. This can be anything from genetic or economic data to social media posts, computer IP address or cookie identifiers. The definition even includes data that is protected by a pseudonym, where identifying data is held separately, for example, in a hospital where samples are labelled with numbers rather than patient names before being sent for testing. Notable exceptions apply to national security activities and law enforcement.

The Regulation is applicable to data controllers and data processors. A data controller is any person or body which collects data and determines how that data is to be processed, for example an employer, a bank or a medical practice. Data processors are persons or bodies which process the data on behalf of the controller, for example a payroll company, accountant or “cloud” provider. A business or company may be both a data controller (in relation to its own employees’ personal data) and a data processor.

Personal data held in both electronic format and in hard copy is covered by the Regulation.

 

Increased Administrative Responsibilities

The GDPR builds on obligations under existing data protection legislation and will increase the administrative responsibilities owed by data controllers and processors. Given the scope and size of the Regulation it is not possible to give an exhaustive list, but below are some of the most important requirements:

  • Data controllers are obliged to implement “appropriate technical and organisational measures” to both ensure and demonstrate that processing is performed in accordance with the Regulation.
  • Records of processing activities and to demonstrating how the data protection principles have been complied with, (for example by demonstrating consent as the basis of legal consent) will need to be kept. This is one of a significant number of new requirements to keep detailed records. Records will also need to be kept of all technical and organisational measures taken to show what has been done by controllers to safeguard the privacy of data subjects at all stages.
  • Additional resources will also be required to facilitate the new and expanded rights granted to individuals such as the right to be forgotten, the right to have incorrect data rectified and the right to more extensive information about how an individual’s own personal data is processed.
  • Where there has been a personal data breach there is a requirement to report it to the Data Protection Commissioner (“DPC”) not later than 72 hours unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons. Ideally, data controllers and processors should have policies in place for dealing with breaches to ensure that they can take efficient and appropriate action where necessary. A lack of such a policy would in all likelihood be viewed unfavourably by the Office of the Data Protection Commissioner in the event that Office was called upon to investigate a breach or in the course of an audit of data protection compliance within the controller/processor organisation at large.
  • A Privacy Impact Assessment is required where a business carries out data processing, in particular using new technologies, which is likely to result in a high risk to the data subject’s rights. Examples of those covered by this requirement could include online marketing companies or insurance companies who use automated processing or profiling, or any business extensively using CCTV, such as retailers or licensed premises.

 

Consent and Terms and Conditions

A business or organisation must have a legal basis for controlling or processing personal data. The Regulation makes important changes in the way in which this legal basis is obtained/determined. Companies that justify data processing by virtue of an individual’s consent will face more demanding requirements. Consent must be “freely given, specific, informed and unambiguous” and must be expressed “by a statement or by a clear affirmative action”. This means that consent cannot be given by pre-ticked boxes, silence or inactivity, nor can it be inferred from certain actions such as visiting a website. It must also be as easy to withdraw consent as it is to give it.

When processing data (by consent or for any other legitimate reason) an individual must be provided with certain information such as:

  • how long the data will be kept;
  • who will be receiving the data;
  • the purpose of the data processing;
  • the right to withdraw consent; and
  • the right to lodge a complaint with the Data Protection Commissioner.

Importantly, this must be provided in “a concise, transparent, intelligible and easily accessible form, using clear and plain language”. This aims to bring an end to long incomprehensible terms and conditions full of legalese.

Businesses that process or control data with the consent of the data subject should review the way in which this consent is obtained and also review the standard and form of the information they provide to data subjects.

New Obligations for Data Processors

Under the current system, data processors’ obligations are based on their contract with the data controller and the controller is the party responsible for any data breaches. For example, if a bank stores customers data with a cloud service provider and there is a data breach for which the cloud service provider is responsible, it is the bank that bears legal responsibility. Under the new Regulation controllers and processors are jointly and severally liable for data breaches.

The GDPR places increased responsibilities on data processors by imposing direct obligations such as prohibiting sub-contracting without the consent of the controller, prohibiting the processing of data other than in accordance with the instructions of the controller and requiring that processors assist the controller in ensuring compliance with the Regulation. Additionally, the new Regulation introduces mandatory terms that must be included in the contract between the data controller and data processor such as an obligation on the processor to delete or return data at the request of the controller once the service is complete.

In addition to agreeing all future contracts in accordance with the Regulation, businesses and organisations should assess existing agreements, and if necessary revise them, to ensure compliance.

Data Processing Officer

One of the more onerous and expensive requirements of the new Regulation is the requirement to appoint a Data Protection Officer (“DPO”). The appointment of a DPO is mandatory for (a) public authorities, (b) companies and organisations in the private sector that engage in large scale regular and systematic monitoring of data subjects, or (c) organisations that engage in large scale regular and processing of sensitive personal data. If a company is unsure whether it falls into any of the above categories it can consult the “Guidelines on Data Protection Officers” produced by the European Commission which provide a more detailed analysis of the requirement to appoint a DPO.

A DPO can be hired as a staff member or can be an external service provider and a single DPO can be appointed for several organisations. The Regulation requires that a DPO must have expert knowledge of data protection law. They must also have a good understanding of IT processes and cyber security.   The Office of the Data Protection Commissioner (“DPC”) has also published “Guidelines on appropriate qualifications for a DPO”.

It is also important to note that although a DPO may be an employee they are required to operate with a certain degree of independence and autonomy in ensuring compliance with the Regulation. The Regulation specifically prevents a DPO from undertaking tasks which constitute a conflict of interest.

Enforcement

As a Regulation, the GDPR is directly effective and does not require transposition into Irish law and as such will be enforceable from 25th May 2018. It increases the investigatory powers of the DPC and also provides for administrative fines of up to €20,000,000 or 4% of annual global turnover, whichever is greater. Fines of up to €10,000,000 or 2% of global turnover can be imposed for administrative oversights such as failing to appoint a DPO or failing to notify the DPC of a personal data breach. Fines will be issued not by a court but by the DPC directly.

The Regulation also introduces the idea of a ‘one stop shop’ which means that multinational companies engaged in data processing and controlling will be regulated by the supervisory authority (in Ireland the DPC) where the company has its main establishment, thus removing the need to engage with multiple national supervisory authorities.

The GDPR also has the effect of making it easier to bring cases for compensation against data controllers and processors in national courts as it allows compensation to be awarded in cases where there has been no material damage suffered, for example compensation can be awarded for distress or damage to reputation.

It is anticipated that these changes will lead to an increase in litigation in this area. Firstly, by increasing the number of claims for compensation against data controllers and processors and secondly through the DPC exercising her new and expanded powers potentially leading to an increase in the number of appeals and judicial reviews.

For further information concerning the GDPR contact:-

 

Niall Enright
Solicitor
O’Connor Solicitors
8 Clare Street
Dublin 2
Tel: 6764488
E: mailto:niall.enright@oclegal.ie

 

Beneficial Ownership Register – A Guide for Companies

The EU Anti-Money Laundering Directive has created new rules that require companies to gather and store information about their beneficial owners. The regulations have introduced a two stage process:

  1. Companies are currently required (as of the 15th of November 2016) to maintain current accurate information on their beneficial owners on an internal register.
  2. The establishment in the near future of a central register, to be called the Registrar of Beneficial Ownership of Companies and Industrial and Provident Societies, which will be administered by the Companies Registration Office.

Failure to comply with the requirements is a criminal offence which can lead to a fine of up to €5,000 on summary conviction.

Who are Beneficial Owners?

A beneficial owner is the individual who ultimately owns or controls a company through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in that company.

A shareholding of 25 % plus one share or an ownership interest of more than 25 % in a company held by an individual is an indication of direct ownership. A shareholding of 25 % plus one share or an ownership interest of more than 25 % held by a separate company, which is under the control of an individual is an indication of indirect ownership.

Requirement for Companies to Hold Information

Since the 15th of November 2016 Companies have been required to hold the following information:

  • The name, date of birth, nationality and residential address of each beneficial owner.
  • A Statement of the nature and extent of the interest held by each beneficial owner.
  • The date on which each person entered the register and the date on which any person ceased to be a beneficial owner.

The information must be up to date, clear and accurate. Companies are obliged to serve notices requesting information on persons they suspect to be beneficial owners and persons who receive these notices have one month in which to reply. There is an independent duty on beneficial owners to notify the company if there is a change of their status. If a company cannot locate its beneficial owners then it must instead enter the details of its senior managing officials.

Companies should be proactive in maintaining their own registers in the lead up to the creation of the central register.

Central Registrar of Beneficial Ownership

The Department of Finance is expected to introduce the Register of Beneficial Ownership of Companies in the fourth quarter of 2017. This will require Companies to file their internal registers of beneficial owners, as well as the details of the person who makes the submission on behalf of the company, with the Companies Registration Office.

Although the exact rules have not been finalised the Companies Registration Office has indicated that there will likely be a three month grace period before companies will be found to be in breach of the statutory duty to file. The filing is to be done through an online portal without the need for filing fees. Under the current directive the public would not have access to the information but the issue of public access is being debated and may form part of future regulations.

 

John C. O’Connor
Partner
O’Connor Solicitors
8 Clare Street
Dublin 2
Tel: 6764488
E: john.oconnor@oclegal.ie

General Data Protection Regulation

Guide to the GDPR – Outline of Stringent New Data Protection Obligations

The EU General Data Protection Regulation (GDPR) comes into force across the EU on 25th May 2018. The Regulation dramatically increases the obligations and responsibilities of businesses and organisations which control or process data. As these new obligations and responsibilities are paired with severe new sanctions, businesses should take the time to ensure their compliance in advance of the Regulation coming into force.

Who is Affected

The Regulation is binding on businesses and organisations that are involved in controlling or processing the personal data of individuals in the EU regardless of the location of the company or the location of the data processing. Although the situation is somewhat complicated by Brexit, the UK government has indicated that it will implement equivalent or alternative regulations that will largely follow the GDPR.

Personal data is defined so broadly as to cover any information that can be used to directly or indirectly identify a person. This can be anything from genetic or economic data to social media posts, computer IP address or cookie identifiers. The definition even includes data that is protected by a pseudonym, where identifying data is held separately, for example, in a hospital where samples are labelled with numbers rather than patient names before being sent for testing. Notable exceptions apply to national security activities and law enforcement.

The Regulation is applicable to data controllers and data processors. A data controller is any person or body which collects data and determines how that data is to be processed, for example an employer, a bank or a medical practice. Data processors are persons or bodies which process the data on behalf of the controller, for example a payroll company, accountant or “cloud” provider. A business or company may be both a data controller (in relation to its own employees’ personal data) and a data processor.

Personal data held in both electronic format and in hard copy is covered by the Regulation.

Increased Administrative Responsibilities

The GDPR builds on obligations under existing data protection legislation and will increase the administrative responsibilities owed by data controllers and processors. Given the scope and size of the Regulation it is not possible to give an exhaustive list, but below are some of the most important requirements:

  1. Data controllers are obliged to implement “appropriate technical and organisational measures” to both ensure and demonstrate that processing is performed in accordance with the Regulation.
  2. Records of processing activities and to demonstrating how the data protection principles have been complied with, (for example by demonstrating consent as the basis of legal consent) will need to be kept. This is one of a significant number of new requirements to keep detailed records. Records will also need to be kept of all technical and organisational measures taken to show what has been done by controllers to safeguard the privacy of data subjects at all stages.
  3. Additional resources will also be required to facilitate the new and expanded rights granted to individuals such as the right to be forgotten, the right to have incorrect data rectified and the right to more extensive information about how an individual’s own personal data is processed.
  4. Where there has been a personal data breach there is a requirement to report it to the Data Protection Commissioner (“DPC”) not later than 72 hours unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons. Ideally, data controllers and processors should have policies in place for dealing with breaches to ensure that they can take efficient and appropriate action where necessary. A lack of such a policy would in all likelihood be viewed unfavourably by the Office of the Data Protection Commissioner in the event that Office was called upon to investigate a breach or in the course of an audit of data protection compliance within the controller/processor organisation at large.
  5. A Privacy Impact Assessment is required where a business carries out data processing, in particular using new technologies, which is likely to result in a high risk to the data subject’s rights. Examples of those covered by this requirement could include online marketing companies or insurance companies who use automated processing or profiling, or any business if extensively using CCTV, such as retailers or licensed premises.

Consent and Terms and Conditions

A business or organisation must have a legal basis for controlling or processing personal data. The Regulation makes important changes in the way in which this legal basis is obtained/determined. Companies that justify data processing by virtue of an individual’s consent will face more demanding requirements. Consent must be “freely given, specific, informed and unambiguous” and must be expressed “by a statement or by a clear affirmative action”. This means that consent cannot be given by pre-ticked boxes, silence or inactivity, nor can it be inferred from certain actions such as visiting a website. It must also be as easy to withdraw consent as it is to give it.

When processing data (by consent or for any other legitimate reason) an individual must be provided with certain information such as:

  1. how long the data will be kept;
  2. who will be receiving the data;
  3. the purpose of the data processing;
  4. the right to withdraw consent; and
  5. the right to lodge a complaint with the Data Protection Commissioner.

 

Importantly, this must be provided in “a concise, transparent, intelligible and easily accessible form, using clear and plain language”. This aims to bring an end to long incomprehensible terms and conditions full of legalese.

 

Businesses that process or control data with the consent of the data subject should review the way in which this consent is obtained and also review the standard and form of the information they provide to data subjects.

New Obligations for Data Processors

Under the current system, data processors’ obligations are based on their contract with the data controller and the controller is the party responsible for any data breaches. For example, if a bank stores customers data with a cloud service provider and there is a data breach for which the cloud service provider is responsible, it is the bank that bears legal responsibility. Under the new Regulation controllers and processors are jointly and severally liable for data breaches.

The GDPR places increased responsibilities on data processors by imposing direct obligations such as prohibiting sub-contracting without the consent of the controller, prohibiting the processing of data other than in accordance with the instructions of the controller and requiring that processors assist the controller in ensuring compliance with the Regulation. Additionally, the new Regulation introduces mandatory terms that must be included in the contract between the data controller and data processor such as an obligation on the processor to delete or return data at the request of the controller once the service is complete.

In addition to agreeing all future contracts in accordance with the Regulation, businesses and organisations should assess existing agreements, and if necessary revise them, to ensure compliance.

Data Processing Officer

One of the more onerous and expensive requirements of the new Regulation is the requirement to appoint a Data Protection Officer (“DPO”). The appointment of a DPO is mandatory for (a) public authorities, (b) companies and organisations in the private sector that engage in large scale regular and systematic monitoring of data subjects, or (c) organisations that engage in large scale regular and processing of sensitive personal data. If a company is unsure whether it falls into any of the above categories it can consult the “Guidelines on Data Protection Officers” produced by the European Commission which provide a more detailed analysis of the requirement to appoint a DPO.

A DPO can be hired as a staff member or can be an external service provider and a single DPO can be appointed for several organisations. The Regulation requires that a DPO must have expert knowledge of data protection law. They must also have a good understanding of IT processes and cyber security.   The Office of the Data Protection Commissioner (“DPC”) has also published “Guidelines on appropriate qualifications for a DPO”.

It is also important to note that although a DPO may be an employee they are required to operate with a certain degree of independence and autonomy in ensuring compliance with the Regulation. The Regulation specifically prevents a DPO from undertaking tasks which constitute a conflict of interest.

Enforcement

As a Regulation, the GDPR is directly effective and does not require transposition into Irish law and as such will be enforceable from 25th May 2018. It increases the investigatory powers of the DPC and also provides for administrative fines of up to €20,000,000 or 4% of annual global turnover, whichever is greater. Fines of up to €10,000,000 or 2% of global turnover can be imposed for administrative oversights such as failing to appoint a DPO or failing to notify the DPC of a personal data breach. Fines will be issued not by a court but by the DPC directly.

 

The Regulation also introduces the idea of a ‘one stop shop’ which means that multinational companies engaged in data processing and controlling will be regulated by the supervisory authority (in Ireland the DPC) where the company has its main establishment, thus removing the need to engage with multiple national supervisory authorities.

The GDPR also has the effect of making it easier to bring cases for compensation against data controllers and processors in national courts as it allows compensation to be awarded in cases where there has been no material damage suffered, for example compensation can be awarded for distress or damage to reputation.

It is anticipated that these changes will lead to an increase in litigation in this area. Firstly, by increasing the number of claims for compensation against data controllers and processors and secondly through the DPC exercising her new and expanded powers potentially leading to an increase in the number of appeals and judicial reviews.

For further information concerning the GDPR contact:-

 

Feena Robinson

Associate

O’Connor Solicitors

8 Clare Street

Dublin 2

Tel: 6764488

High Court rejects appointment of Barrister as “Direct Access Counsel”

High Court rejects appointment of barrister as ‘Direct Access Counsel’

In a recent decision the High Court refused an application for the appointment of a barrister as a direct access counsel, (meaning a barrister acting without the instructions of a solicitor). In doing so Mr. Justice Gilligan addressed important issues about the interaction between professional codes of conduct and regulatory legislation.

All barristers in Ireland are trained by the Honorable Society of Kings Inns and once trained they become members of the Society. Although not mandatory, the vast majority of barristers in Ireland are also members of the Bar of Ireland (known as the Law Library) which is governed by a professional code of conduct. It is this code of conduct and not any express rule of law that prevents a barrister from acting without the instructions of a solicitor.

Although a qualified barrister, the applicant in this case was not a member of the Bar of Ireland but rather is the president of a new organisation called the Association of Barristers in Ireland which does not have a similar prohibition. She argued that as she was not a member of the Bar of Ireland she should not be governed by its code of conduct and as such she could act without the instructions of a solicitor.

In refusing the application, Mr. Justice Gilligan referenced the fact that the Rules of the Superior Courts, a form of secondary legislation, specifically define the role and function of solicitors as clients’ representatives and therefore implicitly exclude a barrister from performing those same roles and functions in contentious litigation. He then went on to make important observations about the way in which barristers are regulated.

First, Section 101 of the Legal Services Regulation Act (which has yet to be commenced) prohibits any professional code from preventing a barrister from providing legal services as a practising barrister in relation to a matter other than a contentious matter without the instructions of a solicitor. Mr. Justice Gilligan said that it was clear that the directions intended that the professional codes applicable to barristers should continue to apply unless and until replaced by or revised regulatory action by the authority. This has the effect of recognizing and providing tacit endorsement of the status of the professional code of the Bar of Ireland.

Second, when the applicant qualified as a barrister, she made a declaration to the Honorable Society of Kings Inns stating that she would observe the code of conduct of the Bar of Ireland. This had the interesting effect of binding her to the professional code of conduct of the Bar of Ireland even though she is not a member of it.

This decision clarifies important issues concerning the interaction between professional codes and government regulations. From the drafting of the Legal Services Regulation Act 2015 we can see that the regulators provide for professional codes of conduct to govern areas which the Act has not seen fit to govern. The drafters of the Act did not envisage a situation where a professional could opt out of these codes and essentially be regulated by the Act alone. This decision highlights the extent to which the regulators rely on these codes to be a binding and effective form of regulation.

O’Connor Solicitors Ranked as Leading Firm in Chambers Europe 2019

O’Connor Solicitors has been ranked as a leading firm in Chambers Europe 2019 where the firm is recognised for its strength on a wide range of issues that include commercial litigation, commercial leases and property transactions, employment and trade union law, regulatory advice and hearing, mediation, insurance and commercial agreement, charity and trust law and advice on shareholders agreements and company restructuring.