Discusses the reasons for having a written contract of employment and the employment law governing terms and conditions of employment. Then sets out the terms and conditions that need to be provided to employees in writing under the Terms of Employment (Information) Acts 1994-2014. Finally compares employment contracts and employee handbooks and warns that terms set out in staff handbooks are often treated as part of the employee contract especially when they concern grievance procedures.
There is no legal requirement that an employment contract has to be in writing although see the section on the Terms of Employment (Information) Acts 1994-2014 below. The advantage of having a contract in writing is that it sets out the terms agreed between the employer and the employee providing a level of certainty in the relationship.
Over the years, some legislation has specified minimum terms which apply in the absence of a contractual agreement and other legislation has specified minimum standards of employment which cannot be varied by contract or otherwise. Examples of such legislation include:
- The Organisation of Working Time Act 1997 and the regulations made under it impose a maximum working week which applies to most employees.
- The Minimum Notice and Terms of Employment Acts 1973 to 2005 impose minimum notice periods which apply to termination of employment in the absence of any contractual agreement.
- Other legislation, such as the Employment Equality Acts 1998-2015, the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005 and the Parental Leave Acts 1998 and 2006, gives employees rights, even if these rights are not specifically stated in their contracts.
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Terms of Employment (Information) Acts
The Terms of Employment (Information) Acts 1994-2014 impose an obligation on employers to provide employees with the following terms and conditions in writing:
- the names of employer and employee
- the address (or principal place of business) of the employer
- the place of work
- the title of the job or nature of the work for which the employee is employed
- the date of commencement of employment
- the duration of any temporary or fixed term contract
- the rate or method of calculation of remuneration and pay reference period for the purposes of the National Minimum Wages Act 2000
- reference to any Registered Employment Agreement (REA), Employment Regulation Order (ERO) or
Sectoral Employment Orders (SEOs) applicable to the employee together with confirmation of where the employee may obtain a copy of the ERO, REA or SEO
- that the employee may request from the employer a written statement of the employee’s average hourly rate of pay for any reference period
- whether remuneration is payable weekly, monthly or otherwise
- any terms or conditions as to hours of work including overtime
- any terms or conditions relating to paid leave (other than sick leave)
- any terms or conditions relating to:
- incapacity for work due to sickness or injury
- paid sick leave
- pensions and pension schemes
- the period of notice which the employee must give or receive to terminate the employment
- details of any collective agreements affecting the terms and conditions of employment
The employer is required to provide the employee with this statement no later than two months after the employee starts work. Whenever a change is made, the employer is obliged to notify the employee in writing of the change as soon as possible but no later than one month after the change takes effect.
An employee may present a complaint to an Adjudication Officer that their employer has contravened certain provisions of the Act. An Adjudication Officer has the power to:
- declare that the complaint was or was not founded
- confirm all or any of the particulars contained in, or referred to in, any statement provided by the employer
- alter, or add to, any such statement for the purpose of correcting any inaccuracy or omission in the statement
- require an employer to give a written statement containing particulars as may be specified by the Adjudication Officer
Any statement so altered, or added to, will be deemed to have been given to the employee by the employer.
The Adjudication Officer is also empowered to order the employer to pay the employee such compensation as is just and equitable of up to four weeks' remuneration.
The Industrial Relations (Amendment) Act 2012 has amended the Terms of Employment (Information) Acts 1994–2014 by providing for an alternative mechanism for compliance. Where an Inspector (as defined within the meaning of the Workplace Relations Act 2015) believes an employer has not complied with one of the specified obligations under the Act, they may give a direction to an employer to comply with that obligation within a certain period of time.
Where the employer complies with the direction or where the specified period has not elapsed, the employee may not take a claim to the Adjudication Officer. If the employer does not comply with a direction within the specified period, then the employee may take a claim to the Adjudication Officer.
In reality most employers incorporate their statutory obligations under the 1994 Act into the contract of employment and head the document Contract of employment including those particulars required to be given pursuant to the Terms of Employment (Information) Acts 1994–2014.
Interplay between contract and handbook
Handbooks generally set out in greater detail, for example, how absence on the grounds of sickness will be dealt with. In many instances, the contract may make a reference to the handbook or a policy in the handbook, for example, all grievances will be conducted in accordance with the grievance procedure contained in the staff handbook.
A question that sometimes arises is whether or not the grievance procedure set out in the handbook forms part of the contract of employment. Generally, the answer is yes. Some contracts specifically state that the sections of the handbook referred to in the contract will form part of the contract of employment, but that the rest of the handbook is for employees’ information and guidance only, although they will be expected to comply with its provisions. Others state quite clearly that the handbook does not form part of the contract of employment.
Where the employer provides both a contract and a handbook, it can be useful to include a provision in the contract that, if there is any inconsistency between the terms of the contract and the handbook, the terms of the contract will apply. The handbook, itself, should include a reference to the fact that the employer has a right to amend or update the handbook as and when necessary.