According to Donovan, (2006) in the book “Employment Law”, it is observed that the Irish employment sphere is governed by impartial employment rules especially those dealing with contracting. This statement is supported by his remarks when he notes that ‘In the employment sphere — freedom of contract is severely restricted by legislation and such legislation leans heavily in favor of the employee’. Essentially, this statement insinuates that the balance of power that once dominated the employment or labor sphere in Ireland has long been shifted to reflect the interests of the employees to the disadvantage of the employers. The principal areas entailed in these employment laws have directly influenced businesses’ profitability, courtesy of the regulation passed by the government. In the long run, the disparities in the law have affected not only the perpetuity of businesses but also on the employee-employer relations, social factors, and political as well as economic factors (Dennis, 2007). As a result, this paper seeks to draw a common point in the observation made by Donovan by discussing the pertinent features and characteristics embedded into the Irish employment system.
A contract is an agreement between two or more people stating the nature of their relationship, their rights and privileges and how conflicts between them can be resolved (Peck, Mulvey, Jackson & Jackson, 2012). A contract can be written or unwritten but it is legally binding between the parties involved. It is agreeable that Court decisions, the constitution, tribunals and statute laws either directly or indirectly impact the relationship exhibited by both the employers and employees (Wahl, 2010). Therefore, employment laws are applicable to all dimensions of a business from recruitment to the retirement period. For a long time now, Ireland that is a country found in the European continent has been known to have one of the highly regulated employment sector. For instance, there are pre-contract matters which seeks to address how employers can seek potential employees by use of job advertisements (Dennis, 2007). Among the regulations stipulated in this clause include regulations on gender equity and diversity. Additionally, the clause regulates the wording of job advertisements which have to be carefully worded and fully comprehensible by the applicants. This is because the job advertisements can be used as part of the employment contract (D’Art & Turner, 2005). The way the job interviews are conducted also form part of the contract of employment whereby the prospective employee or employees representation at the interview could become legally binding for both parties.
The employment laws are also specific on the questions that can be asked during an interview thus inquiries deemed to be a potential breach of the acceptable code of conduct and gender biases are highly punishable by law. This means that the employer has to stick to the stipulated procedures dictating best practices and processes in the pre-contracting period. Failure to which the employer can face the law for selecting employees without adhering to the equity legislation. The next step concerns the contract of employment which is protected by the Terms of Employment Information Act of 1994. The act was revised and amended in 2001 after which it became obligatory for the employers to provide the employees with a job description as well as a statement detailing basic terms of the employment contract (Faulkner, 2007). The statement has to include the title of the job, the date of commencement, place of work, pay details, hours of work, period of notice whenever the contract is being terminated, and conditions of the employee-employer relationship.
World Bank, (2011) seconds that the EU employment laws have stipulated the minimum wage for the employees. The national minimum wage rate as per the year 2000 was €8.65 Euros per hour. Some industries have gone ahead to set the pay rates, as well as terms and conditions for all the employees. These regulations have been made in the Employment Regulation Orders which is a Ministerial Code of Practice thus the employers have to observe them with due regard. The code made by the government of Ireland sets the grievance procedure, disciplinary procedure and dispute resolution guidelines which are further supported by case laws drawing examples from past rulings in the field of employment contracts.
Apparently, the Irish laws are majorly grounded by the following legislation. The first bill is the Employment Equality Act of 1998 which was amended in 2011 (Wallace & O’Sullivan, 2002). The act supports that it is unlawful to discriminate employees on the grounds of family status, social class, age, disability, religion, race, sexual orientation, class or gender. These laws are universal, and they are applicable to all contracting processes beginning with recruitment, promotion, appraisal and termination of the work contract. Employers are further charged with the responsibility of observing that the employees are not harassed sexually failure to which the employer will be liable for damage and incur costs accruing from court charges and compensation for non-compliance.
Analyzing this clause reveals that the Irish laws on the contracting of employees makes it risky for employers to participate in recruitment practices. This is because the laws sideline the employers and make them vulnerable to unfair claims from the potential employees who would be fairly eliminated from the recruitment process. In such a case, the employees have more power as compared to the employers. For instance, there is a provision guarding potential employees against discrepancies in job allocation. This implies that employers are barred from employing a large number of men even when the nature of the job demands intensive labor. It is natural that men are physically energetic to perform some jobs, but the Irish law disregards such facts and gender role which are disadvantageous to some industries (Monroe, 2011).
Secondly, there is the issue of the minimum wage rate for the employees that are set by the government. According to the British Chambers of Commerce (BCC), (2010) an entrepreneur who in this case is the employer has to determine the cost of factors of production based on the costs for the primary factors of production which are capital and labor. By fixing the cost of labor to minimal of 8.65 Euros, it becomes existentially arguable that even the worst paying start-up businesses or business ventures have to raise their cost of goods and services so as to match up to the standards set by the employment contracting laws so as to strike a state of equilibrium between production costs and returns (Randy, 2008). In the end, the products and services become overpriced. Thus, it becomes evident that the extensive regulation of the employment contracts in such a way that it leans heavily on the employer is hurting to the existence of businesses in Ireland because the employers are subjected to extensive pressure that might scare investors and potential investors from setting up businesses thus employment opportunities will be significantly reduced.
The impartiality practiced in the Irish labor laws can also be explained in accordance to the Payment of Wages Act enacted in 1991. This act sets procedures and methodologies that have been approved by the law guiding the payment of salaries and wages. For example, it lays down procedures on how commissions, sick pay, holiday pay and bonus payments have to be made. The shortcoming of this act is that it fails to cover on pensions and expenses, among other benefits. Similarly, it prohibits deductions of the wages without making an agreement between the employees and the employer. By failing cover on the expenses, pensions and benefits the employees are put at liberty for collective bargain through trade unions (D’Art, D, Turner & O’Sullivan, 2013). Such bargains might be beyond the ability of the employer, so it becomes a source of unfair bargains between the employer and the employee.
The Maternity Protection Act passed in the year 1994 and later revised in 2004 states that the employers have to make provisions for a minimum of 26 weeks for expecting mothers. The employer can further make an extension of 16 weeks which will be a period of unpaid leave. This legislation safeguards the employee at the expense of the employer who has to incur extra charges on hiring contractual employees to undertake the duties that were being performed by the employees on maternity leave. Even though this leave is essential in ensuring the good health and safety of the employees during pregnancy so as to cushion the employees from the atrocities associated with ante and post-natal care (Dowling & Valenzuela, 2010). The case of Brown vs. Rentokil states that the EU pregnancy and maternity leave period is protected by the Equal Treatment Directive as well as the EU Pregnancy Directive. The Act makes the employees on leave immune to any form of harassment, discrimination or inequality practices when on leave.
The law defines the responsibilities and duties of employers, employees and other stakeholders in relation to their personal safety and health while at the workplace. The employers have the responsibility of preparing risk Assessment and Safety Statements that identify potential risks and hazards at the place of work (Turner & O’Sullivan, 2013). The statement also includes the control measures that have been undertaken by the employer to mitigate against the potential risks. Thus, the employers have to ensure the safety of the employee’s failure to which they will be arraigned and charged in court for negligence. It is practically agreeable that some accidents are beyond control or at times a mere practice of negligence on the side of the employees but since the law is impartial, the employers have to suffer the cost of damage and liabilities accruing from work related risks and health hazards (Hepple, 1986).
The other legislation stated under the employment contract act is the European Communities Protection of Employees on Transfer of Undertakings Regulations 2003 (James, 2009). This clause protects the employees against changes and transfers of business entities from one employer to the other. Such cases are synonymous with mergers and acquisition bids where the rights and obligations regarding the transfer of such businesses accompany with the condition that the new owner has to retain the employees. Furthermore, the employers are supposed to consult and notify the employees of the proposed sale of the business thus it becomes consenting when the employers rebut to the consultation. At this instance, the employer is left at the mercy of the employees regarding the decision to transfer or sale a business entity unless when it has been directed by the courts, declared bankrupt or goes into receivership (Meenan, 1999).
Under this act, a firm may be forced to absorb employees even those that were in the previous organization that was acquired by a new organization thus resulting into cases of overstaffing which could be detrimental as it reduced return on investment. This is evident in the case of Kingwell vs. Elizabeth Bradley Designs Ltd where the employer was forced to retain redundant employees. Even though it is sensible for the law to offer the employer an opportunity to redesign the employees, the Irish law seems to be impractical to this extent because acquisitions bids come with the need to lessen the number of employees while checking on the costs so as to increase profitability (Blackburn & Hart, 2012).
There is also the case law on Ponisi vs. JVC Europe Ltd which is a recent example of a case involving employers being denied the chance to restructure their organizations because of the overprotective laws that favor employees. The case was between Ponisi who is a general manager for JVC. Due to the employers need to restructure the organizational management structure created a new post and asked Ponisi to reapply. Apparently the new post came with a reduction in salary and status and this made the claimant to refuse to apply. The court’s decision on the case was that JVC was to award Ponisi €161,420 as damage (Beecroft, 2011; Arrowsmith, Gilman, Edwards & Ram, 2003). This made JVC unhappy thus they launched an appeal with the Circuit Court. The court described the restructuring process as a sham and further awarded Ponisi €214,540 and this angered JVC who took the case to the High Court of Appeal. This court proceedings imply the impeachment of employers and this denies them the opportunity to make some decisions that might be vital for the survival of their organizations.
There is also the Employer Protection Act which is congruent to the Termination of Employment Act. It is observable that most of the employee contracting legislation are focused on providing cover and protection for the employees to the detriment of the employers. The employers are left with the few options among them being that of ensuring that the contract of employment are manipulated to protect the employer’s interests alike. This case is supported by the regulation safeguarding the company or business against non-disclosure of information that is private and confidential (Gillman, 1993; Edwards, 1995). The employer has few options on this disclosure because the issue of privacy is purely based on trust thus he or she will have to secure the company’s secrets with the employers who might leak it to the competitors when they are fired or hired by competing organizations. Therefore in spite of there being the employer’s personnel policy restricting e-mail usage, resource use, harassment, grievances, social media restriction and equity, the labor laws put the employer at more risk than the employees. Such a case if implied in the Porter v Atlantic Homecare (540), where the employee was afraid of the grievance procedure which led to her seeking court redress. The case was dismissed because the employee delayed. (D’Art & Turner, 2007).
The Ireland labor laws state that viable contacts of employment have to contain the full names of both the employee and employer, the address of employer, place of work, title or nature of work, date of starting employment among other components. More rules and regulations are contained in the Labor Relations Commission specifying the Code of Practice in times of Grievance and discipline procedures and Unfair dismissal Acts enacted between 1977 and 2007 (D’Art & Turner, 2003). With the risk posed by the severity of the impact and costs to be faced by the employer because the laws lean heavily on the employer than the employees, the employers have begun specifying provisions when writing their contracts of employment so as to limit the powers of the employees and limiting them to certain sectors. This whole topic of discussion is encompassed in the contract law, thus, it seeks to draw knowledge from diverse knowledge base to second the statement made by Donovan (2006).
Based on these clauses that have been picked from the Irelands employment and labor laws, it is made clear that any person who commits resources and time towards working for an employer is entitled to a contract of employment which could either be written or unwritten (Bernstein, 2003). An employee must be given a signed statement before two months elapse upon employment. Fennell and Lynch, (1993) states that contracts of employment have several elements among them being the inclusion of common law, the contract must have provisions such as a maternity leave which implies the statutory rights of the employees. The contract has to coincide with the Irish Constitution, it should have a collective agreement and be in line with the European Laws. Moreover, routine workplace practices customs might easily be evaluated as a contract of employment. By so doing, the employer is marginalized by the labor laws.
Arrowsmith, J. Gilman, M. Edwards, P. & Ram, M. 2003. ‘The Impact of the National Minimum Wage in Small Firms’, British Journal of Industrial Relations, 41, 3, 435-456.
Beecroft, A. 2011. Report on Employment Law, online at: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/12-825-report-on-employment-law-beecroft.pdf
Bernstein, D. E. 2003. “Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism.” Georgetown Law Journal 92(1):1–60
Blackburn, R. & Hart, M. 2012. Small Firms’ Awareness and Knowledge of Individual Employment Rights, Department of Trade and Industry, London, online at: http://www.bis.gov.uk/files/file13207.pdf
British Chambers of Commerce (BCC). 2010. Employment Regulation: Up to the Job?, online at:http://www.britishchambers.org.uk/assets/downloads/policy_reports_2010/employment_regulation_up_to_the_job.pdf
D’Art, D, Turner, T. & O’Sullivan, M. 2013. ‘The Continuing Relevance of Trade Unions.’ Essay in Turner, D’Art and O’Sullivan Eds. Are Trade Unions Still Relevant; Union Recognition 100 Years On. Orpen Press Dublin.
D’Art, D. & Turner, T. 2003. “Union Recognition in Ireland: One step forward or two steps back?” Industrial Relations Journal Vol.34 Issue 3 August, pp 226-240.
D’Art, D. & Turner, T. 2005. “Union recognition and partnership at work; a new legitimacy for Irish trade unions?” Industrial Relations Journal Vol. 36: No. 2 March pp 121-139
D’Art, D. & Turner, T. 2007. ‘Ireland in breach of International Labor Organization Convention on Freedom of Association’ Industrial Relations News IRN 11. 21/03/2007
Dennis, L. 2007. Management Buyout as an Exit Strategy”. Oxford Publishers: Abu Dhabi
Dennis, M. 2009. All companies are not created equally. Pearson Publishers: New York
Donovan, D. 2006. Employment Law. Thompson Round Hall, Dublin
Dowling, J. & Valenzuela, M. 2010. Human Resource Development: A Focus on Education and Health. Cengage Learning Ltd: Singapore
Edwards, P. 1995. The employment relationship. In Edwards, P. (Ed.), Industrial Relations: Theory and Practice in Britain, Blackwell Publishers Oxford: Britain
Faulkner, M. 2007. Essentials of Irish Labor Law. Gill and Macmillan, Dublin
Fennell, C. & Lynch, I. 1993. Labor Law in Ireland. Gill and Macmillan, Dublin.
Gillman, H. 1993. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Duke University Press: Durham
Hepple, B. 1986. ‘The making of Labor Law in Europe; A Comparative Study of Nine Countries up to 1945’ Mansell Publishing London and New York.
James, W. 2009. See further when facing new business legal matters. SRI Alumni Newsletter: Sri Lanka
Meenan, F. 1999. Working within the Law. Oak Tree Press, Dublin
Monroe, D. 2011. Compensation for key employees. Center for Applications of Psychological Type, Inc. Gainesville, FL
Peck, F., Mulvey, G., Jackson, K. & Jackson, J. 2012. Business Perceptions of Regulatory Burden, report for BIS, online at: http://www.bis.gov.uk/assets/biscore/better-regulation/docs/b/12-913-business-perceptions-of-regulatory-burden.pdf
Randy, E. 2008. A new view for compensation planning. Pearl Press: Dubai
Turner, D. & O’Sullivan, M. 2013. Still a struggle? Union Recognition 100 Years On.’ Essay in Turner, D’Art and O’Sullivan.
Wahl, J. 2010. Common questions about copyright law. Jossey-Bass: San Francisco
Wallace, J. & O’Sullivan, M. 2002. The Industrial Relations Act 1990; A Critical Review’. Essay in D’Art, D and Turner, T. eds. Irish Employment Relations in the New Economy. Blackhall Press: Dublin
World Bank. 2011. Doing Business in 2012: Doing Business in a More Transparent World, World Bank, Washington, online at: http://www.doingbusiness.org/reports/global-reports/doing-business-2012