IntroductionThis page outlines some of the main pieces of employment legislation in Ireland. You can find the full Acts and Statutory Instruments on irishstatutebook.ie and oireachtas.ie. Show Information about your jobThe Terms of Employment (Information) Acts 1994–2014 says employers must give employees certain information about their employment, such as a contract of employment, a job description, rate of pay and hours of work. The General Data Protection Regulation (GDPR) 2018 gives you much more control over your personal data. It also sets out the responsibilities of companies who control and process your data. The Employment (Miscellaneous Provisions) Act 2018 bans zero-hour contracts in most situations. It also provides for minimum payments and banded hours. The Act states that employers must give employees information on the 5 core terms of employment within 5 days of them starting work. Equality in the workplaceThe Employment Equality Acts 1998–2015 ban discrimination in a range areas, including gender, civil status, family status, age, race, religion, disability, sexual orientation and membership of the Traveller community. The Acts also place an obligation on employers to prevent harassment in the workplace. The Equality (Miscellaneous Provisions) Act 2015 makes significant amendments to the Employment Equality Act 1998 in the areas of:
Part-time, fixed-term, agency, and self-employed workersPart-time employeesThe Protection of Employees (Part-Time Work) Act 2001 prevents discrimination against part-time workers. It aims to improve the quality of part-time work, to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time that takes account of the needs of employers and workers. It guarantees that part-time workers are not treated less favourably than full-time workers. Fixed term employeesThe Protection of Employees (Fixed Term Work) Act 2003 protects fixed-term employees by ensuring they cannot be treated less favourably than comparable permanent workers, and that employers cannot continually renew fixed term contracts. Under the Act, employees can only work on one or more fixed term contracts for a continuous period of 4 years. After this, the employee is considered to have a contract of indefinite duration (e.g. a permanent contract). Agency workersThe Protection of Employment (Temporary Agency Work) Act 2012 provides that all temporary agency workers must be treated equally (as if they had been directly recruited by the hirer) in respect of the duration of working time, rest periods, night work, annual leave, public holidays and pay. Self-employmentThe Code of Practice for Determining Employment or Self-employment Status of Individuals 2021(pdf) provides criteria which can be used to clarify whether a person is employed or self-employed. Complaints about a breach of employment rightsThe Workplace Relations Act 2015 established the Workplace Relations Commission (WRC), which replaced the Labour Relations Commission, Rights Commissioner Service, Equality Tribunal, and National Employment Rights Authority. You can refer complaints, disputes or grievances regarding breaches of employment rights under certain legislation to the Workplace Relations Commission using their online complaint form. Before you apply to the WRC, you must tell your employer of your intention to contact the Workplace Relations Commission. You should try to resolve the matter with your employer directly before referring a complaint to the WRC. A Workplace Relations Commission adjudicator will listen to both sides before completing an investigation of the complaint and issuing a decision. Read more in our page about making a complaint to the WRC, including what to expect at the hearing. MediationOften, disputes between employers and employees can be resolved using workplace mediation. Mediation is a confidential process, which aims to resolve workplace disputes and disagreements, particularly between individuals or small groups. A mediator will work with employees and employers to find a mutually agreed solution to the problem. The Mediation Act 2017 allows employees to use mediation for certain civil claims, for example, personal injuries actions. This legislation does not apply to employment disputes brought to the WRC, including disputes being dealt with by mediation officers of the WRC.
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1. Why is it important to determine whether an employer and employee relationship exists? To apply Social Security coverage correctly, it is essential that it be known whether an employee and employer relationship exists between the individual (worker) performing the services and the person or firm for which those services are being performed. 2. What is the definition of an employee for purposes of Social Security? Any worker who, under the usual common law rules applicable in determining the employer and employee relationship, has the status of an employee. Thus, making a determination whether a relationship exists requires more development than looking at a paycheck. It requires looking at each worker individually and making a decision based on the facts related to that person. To ease the process of making relationship determinations, we created the common law control test. 3. What is the definition of an employer for purposes of Social Security? A person can be an employer if he employs one or more employees. Employers can be an individual, a corporation, a partnership, an entity, or other types of organizations. Although a person may be an employer, and services may be performed for his purposes, this does not constitute employment or that an employer and employee relationship exists. 4. What is the common law control test and how does it relate to employer and employee relationship determinations? The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Under the common-law test, the employer has the right to tell the employee what to do, how, when, and where to do the job. As you will see in the following questions and answers, there are factors, or elements, which indicate such control over the details of a person’s work. For a complete list of factors, refer to question 9. 5. What is the history of the common law rules in determining employer and employee relationships? The 1950 and subsequent amendments to the Social Security Act use the common-law rules in determining employer and employee relationships. In enacting the 1950 amendments, Congress expressed the view that these rules should be realistically, not restrictively, applied. This intent appears in Conference Report No. 2771, which accompanied the House bill that was the forerunner of the 1950 amendments. The Report reiterates and endorses a statement made in the House Report on the 1939 amendments to the effect that a restrictive view of the employer and employee relationship should not be taken in administering the old-age and survivors insurance system. The Conference Report on the 1950 amendments concluded that the 1939 statement applies equally to the 1950 amendments, and that the law contemplates a realistic interpretation of the common-law rules. 6. What if a worker meets the common law control test? A worker is considered an employee if their relationship with the employer meets the common-law test. Even if the employer does not give the employee orders on what to do, including, how, when, and where to do the job, he or she only needs the right to do so for the worker to be considered an employee. 7. What if a worker does not meet the common law control test? Most likely, if the test does not reflect the existence of a relationship, they are a contractor or are self employed. 8. How do you implement the common law test? The primary consideration when applying the common law test is to determine who has the right to control two basic elements; WHAT MUST BE DONE and HOW IT MUST BE DONE. This requires the application of judgment to facts and circumstances. A decision based on an incomplete set of facts may be wrong. It is, therefore, imperative in resolving questions of coverage to obtain complete factual information. Each factor of the test must be considered and weighed in the light of all circumstances. No one factor is controlling. They are intended to serve as guides in reaching a reasonable conclusion. The factors can be seen below in question 9. 9. What are the factors of the common law test? The common-law control test is used to determine whether a worker is an employee. The test involves a great degree of subjectivity, and even with all the facts, it may still be difficult to say whether the services rendered were performed as an employee. Finding that a worker is an employee is a finding that the person was subject to control over when, where, and how (the means and methods) to perform the work. This finding does not mean the control is actually exercised—only that the employer has the right to exercise it. Each of the following factors should be closely weighed against the worker and the employer. Actual instruction or direction of worker Training Integration Services to be rendered personally Hiring and supervising of assistants Duration of relationship Hours of work Full-Time work Full-time services may be required even though not specified in writing or orally. For example, a worker may be required to produce a minimum volume of business, which requires devoting full working time to that business. Or, the worker may not be permitted to work for anyone else. Thus, it necessarily requires full-time work to earn a living. Place of work The fact that work is done off the premises does indicate some freedom from control. However, it does not by itself mean that the person is not an employee. In some occupations the services are necessarily performed away from the premises of the employer, i.e., Alternate Duty Stations (ADS). This is true, for example, of employees of construction contractors or taxicab drivers. Order of services Often, because of the nature of an occupation, the employer either does not set the order of the services or sets them infrequently. It is sufficient to show control, however, if the employer retains the right to do so. The outside commission salesperson for example, usually is permitted great latitude in mapping out activities and may work “on his own” to a considerable degree. In many cases, however, at the direction of the employer the worker must report to the office at specified times, follow up on leads and perform certain tasks at certain times. Such directions interfere with and take preference over the salesperson's own routines or plans, thus indicating control. Reports Manner of payment Generally, a worker is an employee if he is guaranteed a minimum salary or is given a drawing account of a definite amount at stated intervals and is not required to repay any excess drawn over commissions earned. If payment is made by the job or on a straight commission basis, it generally indicates that the worker is an independent contractor. Payment by the job includes a lump sum which is computed by the number of hours required to do the job at a fixed rate per hour. Such a payment should not be confused with payment by the hour. Payment of business expenses Furnishing tools and materials Investment In general, facilities include equipment or premises necessary for the work, such as office furniture, tools, machinery, etc. This term does not include tools, instruments, clothing, etc., that are provided by employees as a common practice in their particular trade, nor does it include education, experience, or training. In order for an investment to be a significant factor in establishing that an employer-employee relationship does not exist, it must be real, it must be essential, and it must be adequate. Profit or loss possibility Opportunity for profit or loss may be established by one or more of a variety of circumstances, e.g., an individual:
Working for a number of people Availability of services to the
public Individuals may hold their services out to the public in a number of ways. For example, they may:
Right to discharge Right to quit at any time 10. Are there factors of the common law test that are not material to an employment determination? YES. There are two factors that are often present which are not germane to the determination as to whether a bona fide employer and employee relationship was created or existed. Their existence should serve as an alert for complete factual development and careful appraisal of the relationship between the parties. These factors are as follows:
11. What are some other aspects of a job arrangement that may show a worker is an employee? Several of the following factors re-emphasize points made in question 9. When:
12. What are some aspects of the job arrangement or business venture that may show self-employment status? When a person:
13. Are there other tools that can be used to aide in the process of making employer and employee relationship determinations? YES, Form SSA-7160-F4, Employment Relationship Questionnaire (View PDF Version), was designed for use in developing the question of employer and employee relationships, except where the worker is an officer of a corporation. It is a questionnaire, for use by SSA, which elicits information for use under both the common-law control test and the occupational group test. Since this form is designed to gather the comprehensive information needed for developing the employment relationship, specialists are encouraged to use it, but its use is not mandatory. It can also be used by state administrators and other non-SSA employees as a guide for unofficial determinations. Additionally, information may be solicited by other means, as long as complete facts are obtained. Form SSA-7160-F4 will not furnish adequate information in all cases. It is not to be used as an end in itself—it is only a means toward the desired end of a complete and accurate description of the relationship in question. Where the answers furnished on the questionnaires do not appear to reflect an accurate and complete factual picture of the relationship, obtain supplementary evidence. It may be written records, contracts, written agreements, statements from persons having knowledge of the employment relationship, etc. A thorough review by the by the State and local specialist or state administrator of the completed questionnaire, and all other evidence in the file, is important. In reviewing the completed questionnaire, keep the following points in mind:
Unless the evidence meets these conditions, the parties involved should be questioned further and additional evidence secured. 14. Is it always necessary to make an independent relationship determination specifically regarding Social Security coverage or can another agency determination be used? In some cases, the IRS may issue a Private Letter Ruling (PLR) regarding the status of a worker as an employee. No effort should be made to obtain copies of alleged IRS determinations or rulings on employer and employee relationships. If a copy is offered, accept it, but make an independent determination using the criteria mentioned above. 15. So how does all of this apply to a real life situation? See the example below for a short analysis. Scenario: Government Technology & Personnel (GTP), a fictitious company designed for the purposes of this example, is a company that furnishes local governments with technical personnel. GTP is contacted by the City of the Eastern Shore, who is in need of a technician to reconfigure the City’s network server. The task is expected to last approximately six months to a year. GTP recruits a technician, from a database that they maintain which lists the skills and abilities of available technicians, to perform the technology services for the City of the Eastern Shore. GTP enters into a contract with the City stipulating that the technician they provide will perform the services for the City, at the City’s municipal building, using materials and equipment provided by the City. The contract further states that the services are to be performed under the supervision City personnel and the technician reports to the City on a daily full-time basis. The worker prepares a report for GTP that accounts for his time worked and the tasks he engaged. Subsequently, the worker is paid weekly by GTP, who, in-turn, charges the City of the Eastern Shore for the technician’s services. GTP retains the right to terminate the relationship with the technician if the reports, at anytime, fall short of GTP’s expectations, or that of the City’s. However, if the technician is terminated, GTP will provide the City with another technician. The former technician will be paid for services he competed prior to dismissal from GTP and he is forbidden to go to work for the City of the Eastern Shore for the period of time stipulated in the contract (i.e., 6 months). Answer: The worker is an employee of GTP under the common law rules, not the City of the Eastern Shore. |