Employment Law Analysis Essay
A contract of employment is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain. On the one end stands an “employee” who is “employed” by an “employer”. It has arisen out of the old master-servant law, used before the 20th century. Put generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the influential labour lawyer Sir Otto Kahn-Freund, “The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power.
In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the ‘contract of employment’. The main object of labour law has been, and… will always be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship A contract of employment not usually defined to mean the same as a “contract of service”.
A contract of service has historically been distinguished from a “contract for services”, the expression altered to imply the dividing line between a person who is “employed” and someone who is “self employed”. The purpose of the dividing line is to attribute rights to some kinds of people who work from others. This could be the right to a minimum wage, holiday pay, sick leave, fair dismissal, a written statement of the contract, the right to organize in a union, and so on.
The assumption is that genuinely self employed people should be able to look after their own affairs, and therefore work they do for others should not carry with it an obligation to look after these rights. In Roman law the equivalent dichotomy was that between locatio conductio operarum and locatio conductio operis (lit. a hiring contract of services and by services). The terminology is complicated by the use of many other sorts of contracts involving one person doing work for another.
Instead of being considered an “employee”, the individual could be considered a “worker” (which could mean less employment legislation protection) or as having an “employment relationship” (which could mean protection somewhere in between) or a “professional” or a “dependent entrepreneur”, and so on. Different countries will take more or less sophisticated, or complicated approaches to the question. Anyone who works for an employer in Ireland for example for a regular wage or salary automatically has a contract of employment.
While the complete contract does not have to be in writing, an employee must be given a written statement of terms of employment within 2 months of starting work The majority of employees work under open-ended contracts of employment. In other words, the contract continues until such time as the employer or employee ends it. Many other employees however, work under fixed-term or specified-purpose contracts which are contracts which end on a specified date or when a specific task is completed.
The contract of employment will include some or all of the following elements (regardless of whether the employer and employee have specified them or not): • The terms that the courts say are in every contract of employment. Examples include the duty of every employer to provide a safe workplace and the duty of every employee to carry out the job to the best of his/her ability. This part of the contract is occasionally referred to as “common law”. • Terms that must be part of the contract as a result of laws passed by the Dail.
Examples include the right to take maternity leave. Such terms are part of the contract even if the employer and employee do not specifically include them and replace any agreement between the employer and employee not to apply the particular law. So, the statutory right to take maternity leave overrides any agreement between the employer and employee that the employee will not take maternity leave. • Terms that the Irish Constitution states must be in every contract, for example, the right of an employee to join a trade union. Collective agreements The Terms of Employment (Information) Acts 1994 and 2001 provide that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.
The statement of terms must include the following information: • The full name of employer and employee • The address of the employer • The place of work • The title of job or nature of work • The date the employment started If the contract is temporary, the expected duration of the contract • If the contract of employment is for a fixed term, the details • Details of rest periods and breaks as required by law • *The rate of pay or method of calculation of pay • The pay reference period for the purposes of the National Minimum Wage Act 2000 • *Pay intervals • *Hours of work • *That the employee has the right to ask the employer for a written statement of his/her average hourly rate of pay as provided for in the National Minimum Wage Act 2000
• *Details of paid leave • *Sick pay and pension (if any) *Period of notice to be given by employer or employee • *Details of any collective agreements that may affect the employee’s terms of employment * In the case of these items instead of giving each employee the details in writing, the employer may refer an employee to other documents, for example, a pension scheme booklet or a collective agreement, provided that the employee has easy access to such documents. The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee’s entitlements under the National Minimum Wage Act 2000.
Under that Act the employer may calculate the employee’s minimum wage entitlement over a reference period that is no less than one week and no greater than one month). Disciplinary and grievance procedures The Labour Relations Commission has published the Code of Practice: Grievance and Disciplinary Procedures which states that employers should have written grievance and disciplinary procedures and they should give employees copies of these at the start of their employment. Under the Unfair Dismissals Acts 1977-2007 employers are required to give the employee in written notice of the procedures to be followed before an employee is dismissed.
This must be done within 28 days of entering the contract of employment. Specific provisions in contracts of employment In recent times, some employers are adding in specific provisions in contracts of employment that limit the ability of employees to work in a certain sector, with certain suppliers, clients, for a period following termination of employment. (For example, it may specifically state that the employee cannot work in a certain sector, with or for suppliers or clients of the former employer, etc. ).
There is nothing in employment law in Ireland that strictly forbids this, but there is no provision in employment law that allows this either. Essentially, this is an issue of contract law – that is, the contract of employment signed and agreed between the employer and employee. If you have any concerns about this issue, you are strongly advised to seek legal advice from a competent legal professional in advance of signing this contract. However, even if the contract is signed, you are always free to seek such legal advice. Solicitors’ fees in Ireland can vary widely so shop around and obtain some quotes for legal advice before you proceed.