The nature of the duties imposed upon both the employer and employee varies in accordance with the type of employment involved, as well as the character and scope of the employment contract. In general, employment duties fall under two distinct headings: common law duties and statutory duties. Common law duties are derived from precedent, whereby judges in previous cases have established the existence of certain obligations and responsibilities between the employment parties. Examples of such duties include:
· the mutual obligation to treat each other with respect,
· the duty of confidentiality,
· the responsibility to act bona fide,
· the requirement to provide work,
· the necessity to act with reasonable care and skill, and
· an indemnity obligation.
Statutory duties are obligations imposed upon the employment parties as a consequent of a piece of legislation or legal instruments. Examples Of such duties include:
· the payment of wages,
· the provision of annual holidays and public holidays,
· the requirement to provide an employee with a reference, and
· health and safety obligations.
While there is no legal requirement for an employment contract to be in written form the employee must receive certain terms and conditions of employment in writing within 2 months of starting his/her employment. Following section 3 (1)(a-m) of the Minimum Notice and Terms of Employment Act 1973-2001 this information must include the full names of the employer and the employee and details of the job title, the pay, hours of work, notice requirements etc.. This statement must be dated and signed by or on behalf of the employer and both parties should retain a copy.
Although most terms and conditions of employment are usually stated in a written contract or a company handbook both parties have to be aware that custom and practice in the workplace may also contribute in constituting terms of employment, as for instance a mid-morning break of 10 minutes or a regular extra day off over several years on the birthday of the company founder.
Though the amount of remuneration is generally is a matter of the agreement between both parties - the employer and the employee - almost every adult worker or employee is entitled to be paid a minimum wage of €9.15 per hour (as of 01.01.2016). However, there are some exceptions to this minimum wage as for instance people employed by close relatives, young employees aged under 18 and trainees or apprentices. Employees are also entitled to receive payslips showing their salary and any deductions that have been made.
Historically workers had to be paid by legal tender only (banknotes or coins), however the Payment of Wages Act, 1979-1991 provides that wages may now be paid by cash, cheque, bank draft, funds transfer or postal money order. Employers that pay their employees in any other way than these may be subject to a fine of up to € 1270.
Employers are regularly responsible for deducting the correct amount of tax, PRSI, and Universal Social Charge from the employees' wages and forwarding these to Revenue. The Payment of Wages Act, 1979-1991 also regulates deductions that employers may make from the employee's gross pay such as PAYE, PRSI, pension contributions (if authorized in the contract), deductions arising from Court Orders, overpaid wages, any deductions to which the employee agreed to in writing (e.g. Trade Union fees, Health Insurance, etc.).
Every employer has a statutory duty to take all reasonable care to ensure his employees’ and workers’ safety. The Safety, Health and Welfare at Work Act, 1989-2005 and the Factories Act, 1955-1980 contain duties of employers like the duty to provide a safe place to work, including access to and from work, duties to provide proper equipment and training, and the duty to ensure that competent co-workers are in place.
This duty includes as well continuous risk assessments and the maintenance of safety statements, the provision and maintenance of facilities, such as clean toilets and washing facilities, the provision of training to employees on health and safety, and the preparation and maintenance of emergency procedures etc.
One of the best statement regarding employers’ duties to ensure safety at work was given in Stokes v Guest, Kean and Nettlefold (Bolts & Nuts) (1968) where the Court stated that “[…] the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know”.
Resulting from these duties the employer’s duty to provide a harassment- and bullying-free workplace arises and also the employer’s duty to arrange for measures to protect employees with pre-dispositions to occupational stress as in Curran v Cadbury (Ireland) Ltd. (2000) stated by the Court that “the duty of the employer […] also extends to protecting the employee from non-physical injury such as psychiatric illness or the mental illness that might result from negligence or from harassment or bullying in the workplace”.
Generally every employer must provide his workers and employees with the number of hours as lined out in the employment contract, however, in cases where the number of hours is not determined in the contract the employer would not be legally obliged to provide work for the employee as long as the employee still receives his salary even though no work is available.
However, exceptions from this rule may be where the employee is employed for commission or on a piecemeal, where the worker needs to work on a regular basis to maintain or develop his skills and where the employer’s failure to provide work would lead to a considerable loss of reputation of the employee or worker.
In the case of a general manager (Re Rubel Bronze & Metal Company (1918)) who was paid a basic salary plus commission the court held that the employer’s actions deprived him of the possibility to earn commission and therefore assumed a breach of contract.
Employer’s failure to provide suitable work may however be held to amount to constructive dismissal as in Byrne v RHM Foods (1979).
Principally working times are part of the mutual agreement between employer and employee, however, the Organisation of Working Time Act 1997 sets down the rules governing maximum working hours and daily and weekly rest breaks. Every employer is responsible for ensuring that all employees are given adequate rest periods which are 15 minutes every 4 hours and 30 minutes worked, 30 minutes for every 6 hours worked (section 12).
Each employee is entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours (section 11) and a rest period of at least 24 consecutive hours in each period of 7 days (section 13). Furthermore no employee should be required to work more than an average of 48 hours in each 7 day period (section 15) and a night worker not more than 8 hours, or an average of 8 hours over a 2-month period, in any period of 24 hours.
Sections 19 to 22 of the Organisation of Working Time Act, 1997 set out minimum entitlements of annual leave generally depending on the time worked and public holiday entitlement.
Romaichev v Prestige Recycling (2008) is a great example where the Romaichev was required to work 66 hours per week and did not receive adequate rest periods. He was awarded a total of € 12,000.
Almost all employees, full-time, part-time, temporary or casual have a legal right to annual leave and public holiday entitlements from the time they start work. Most employees are entitled to 4 weeks’ paid annual leave per leave year. Part-time workers’ entitlement is generally calculated as 8% of the hours worked subject to a maximum of 4 working weeks per leave year. Employers can determine the timing of annual leave, taking into consideration work and personal requirements. Employees may request pay for annual leave in advance. Employers are also obliged to allow employees to avail of statutory protective leave, such as maternity leave, health and safety leave, parental leave, adoptive leave, and carer’s leave. There is specific legislation setting down the rules for each entitlement.
Any contractual agreements with the purpose to circumvent legislation must not considered legally binding (Roddy Mooony McCarthy v Ellen Whelan (2012)). For instance in Curust Industries Ltd v Fiona Lacey (2003) the employer tried to incorporate a payment into the employee’s salary to extinguish the employee’s right to annual leave but the Court ruled that an employer does not fulfil his duty of providing annual leave by increasing the employee’s normal wage.
However, in exceptional circumstances an employee can be requested to return to work during his annual leave though this may be limited to urgent and important issues arising and where the employee reasonably may be the only one to resolve those issues.
The fundamental principle of the employer-employee relationship is based on mutual respect, trust and confidence and therefore none of the parties must treat the other party in a way that would damage this mutuality. Hence, employers must not treat their employees in an abusive manner.
Breaches of the mutual respect from the employer’s side often lead to constructive dismissal cases as for instance in Walsh v Love (1994) where Walsh, after joining a trade union was completely ignored by her employer and excluded from daily work routine. Similar in Byrne v RHM Foods (1979) where after internal hierarchy changes Byrne was left isolated from other employees, without work, her telephone disconnected.