EVERYDAY LAW: Short-time and laying off
For the last two months I have been discussing matters relating to unfair dismissal under the Employment Rights Act, 2012. However, the act also confers new rights on employees with respect to lay-offs and short-time.
For the purposes of the act lay-off and short-time are defined in sections 38(2) and 38(3), respectively, which provide: 38(2) “An employee shall be taken to have been laid off for a week where
(a) he is employed under a contract on terms and conditions such that his remuneration under the contract depends on his being provided by the employer with work of the kind which he is employed to do; but
(b) he is not entitled to any remuneration under the contract in respect of the week because the employer does not provide work of that kind for him.
(3) An employee shall be taken to have been placed on short-time for a week if by reason of a diminution in the work provided for the employee by the employer, being work of a kind which under his contract the employee is employed to do, the remuneration of the employee for the week is less than half a week’s wages.”
Section 38(1) further stipulates that unless there is an agreement to the contrary in a contract of employment, an employer shall not lay off an employee or place him on short-time except for one of the reasons set out in the act.
Moreover, the employer must comply with certain requirements prescribed in the legislation.
The reasons referred to above are that:
“(a) the employer has temporarily ceased, or intends temporarily to cease, to carry on the business for the purposes of which the employee was employed by him, or has temporarily ceased or intends temporarily to cease, to carry on that business in the place where the employee was so employed;
(b) the requirements of the business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have temporarily ceased or diminished, or are expected temporarily to cease or diminish.” (Section 38 (4)(a) and (b)).
The requirements that are mentioned above relate to consultations with the affected employees or their representatives, and the communication to the employee and the trade union, where applicable, of a written statement of the facts that require the employer to lay off the employee or place him on short-time.
Where an employer contravenes Section 38(1) of the act, an employee may make a complaint to the Employment Rights Tribunal which is empowered, on finding the case of the employee proved, to order the employer to pay the employee a sum that is “fair and just” in the circumstances.
Section 40 grants employees who are made redundant as a result of a fall-off of demand for the goods and services of the business of an employer, a right to priority in recruitment where there has been improvement in business within a period of six months from the first redundancy.
A breach of this right permits the employee to make a complaint before the tribunal which is empowered, where it finds the employee’s complaint to be well founded, to order the employer to pay the employee a sum that is fair and reasonable.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael.