Employment status in the Republic of Ireland.
The term 'employee' is generally defined as 'a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;'. However, in ascertaining whether a person is actually employed or self-employed, and accordingly what rights and/or entitlements that person has, it may be necessary for that person to seek a decision by means of a referral to the Revenue Commissioners or SCOPE section of the Department of Employment Affairs and Social Protection.
The Workplace Relations Commission (WRC) has produced a Code of Practice document outlining the criteria used for assessment of a person's status.
Types of Employment:
A person may be employed as a full-time, part-time, or fixed-term employee or as an agency worker, depending on the needs of the employer and/or the purpose of the employment.
Part-Time Workers
The Protection of Employees (Part-time Work) Act, 2001 applies to any part-time employee
- working under a contract of employment or apprenticeship,
- employed through an Employment Agency,
- holding office under, or in the service of, the State including members of the Garda Síochána and the Defence Forces, civil servants and employees of any health board, harbour authority or vocational education committee.
In the case of agency workers, the party who is liable to pay the wages (employment agency or client company) will, normally, be deemed to be the employer for the purposes of the Act and be responsible for ensuring that a part-time employee is not treated in a less favourable manner than a comparable full-time employee.
A part-time employee is defined as someone who works less hours than a comparable full time employee doing the same type of work.
Under the legislation, a part-time employee cannot be treated less favourably than a comparable full time employee in respect of any condition of employment.
An employer cannot penalise an employee –
- for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for or for giving notice of his/her intention to do so, or
- for having in good faith opposed by lawful means an act which is unlawful under the Act, or for giving notice of his/her intention to do so, or
- for refusing to accede to a request by the employer to transfer from performing –
- full-time work to performing part-time work, or
- part-time work to performing full-time work, or
- for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so.
Zero Hours Working Practices
Zero hours working practices refers to practices where an employee is either asked to be available for work, without the guarantee of work, or where an employee is informed that there will be work available on a specified day or days. They are covered by section 18 of the Organisation of Working Time Act, 1997.
Compensation is payable when an employee is not required by the employer to work, even though the employee was required to make himself/herself available over a period without the guarantee of any work.
Compensation is not payable when the employee is paid wages for making himself/herself available for work if the employee has an on-call liability.
Compensation is not payable when an employee is sick, on short-time or lay-off, or in the event of an emergency.
The entitlement to the minimum payment does not apply by virtue only of an expectation having arisen that employment would be given. The compensation provision applies when the employee is notified in advance of being required to work, or where the contract of employment operates to require the employee to be available for work.
The zero hour protections apply to all employees whose contract operates to require them to be available whether they work on a casual basis or not.
Compensation:
In the event of an employer failing to require an employee to work at least 25% of the time the employee is required to be available to work for the employer, the employee will be entitled to payment for 25% of the contract hours or 15 hours, whichever is less.
A minimum payment entitlement arises where an employee is called in to work and does not receive the expected hours of work. This new minimum payment will be payable on each occasion an employee is called in to work and does not receive the expected hours of work.
The minimum payment on each occasion above, will be three times the national minimum hourly rate of pay or three times the minimum hourly rate of pay set out in an Employment Regulation Order (if one exists for that sector and for as long as it remains in force).
Agency Workers
The Protection of Employees (Temporary Agency Work) Act, 2012] defines an "agency worker" as "an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency".
The Act provides that all temporary agency workers must have equal treatment with workers hired directly by the hirer in respect of:
- Pay,
- Working time,
- Rest periods,
- Rest periods during the working day,
- Night work,
- Overtime,
- Annual leave, or
- Public holidays.
Temporary agency workers must also have equal access, with the hirer's own workers, to facilities such as childcare, canteen or similar amenities, or transport services.
Where a vacant position of employment arises with the hirer of an agency worker, the hirer must, when informing his/her own employees, inform any agency worker who is for the time being assigned to work for him/her, of the vacancy for the purpose of allowing the agency worker to apply for that position.
An employment agency cannot charge an individual a fee in respect of making any arrangement for that individual's employment.