Practical Law

In light of Brexit, some businesses based in the UK are considering opening an office in Ireland or expanding their operations in Ireland. However, there are some important differences between UK and Irish employment law that employers should be aware of. 

Key similarities 

There are many similarities between UK and Irish employment law but, paradoxically, this can cause problems for employers with staff in both countries. The fundamentals of workplace rights are broadly the same in both jurisdictions, so for example:  

• Employees are protected against unlawful discrimination from the outset of their employment (and also job applicants).
  

• Employers are obliged to make reasonable adjustments (called “reasonable accommodations“ in Ireland) for employees with a disability.
  

• Employees on maternity leave or other family-related leave have special protection.
  

• Part-time and fixed-term workers are entitled to no less favourable treatment than, respectively, full-time and permanent staff. 
  

• Employees with two years‘ service have the right to a statutory redundancy payment.
  

• Unfair dismissal legislation requires employers to have a fair reason and follow a fair process to lawfully dismiss a qualifying employee. 
  

These and other similarities arguably mean the differences are not as obvious as they would otherwise be. Employers can therefore inadvertently run into problems in Ireland by approaching an HR matter in the exact same way as they would in the UK. 

Key contrasts 

Some of the important differences that employers operating across both countries need to be alert to include the following: 

• Employees can bring an unfair dismissal claim in Ireland when they have one year‘s service (as compared to two years in the UK). (In both jurisdictions, however, employees can bring a claim from day one if they can show the dismissal was for a discriminatory reason, or another protected ground such as trade union membership.)
  

• The system for enforcing employment rights operates differently in Ireland. Employees can bring a claim to the Workplace Relations Commission (“WRC“), which is less formal than its UK equivalent, the Employment Tribunal. The rules of procedure are more relaxed than in the UK and there is very little disclosure of information required from employees in advance of hearings. Parties are responsible for their own legal costs.
  

• There can be an appeal from the WRC to the Labour Court, the Irish equivalent of the UK‘s Employment Appeal Tribunal, which operates more formal rules of procedure. While the names of the parties are not published in most WRC decisions, the names are published in Labour Court judgments. This can be an influencing factor on whether or not to appeal a decision.
  

• Employees in Ireland have six months from the date of the breach complained of to bring an employment rights complaint. This can be extended to 12 months if the failure to bring the claim within six months was due to “reasonable cause“, a relatively high bar for employees to surmount.  
  

• The maximum compensation for an unfair dismissal claim in Ireland is two years‘ remuneration (five years for a dismissal due to a protected disclosure). Remuneration includes salary and all benefits, including benefits in kind. Compensation is based on financial loss. If no such loss has been suffered, the maximum award is four weeks‘ pay. 
  

• Employees in Ireland can seek an injunction to prevent the termination of their employment in certain circumstances. There is a constitutional right to fair procedures, and an individual can apply to the High Court for an order to restrain termination if it can be shown the employer has acted in contravention. (Injunction applications in relation to employment termination are very rare in the UK.) 
  

• More broadly, the constitutional right to fair procedure means that the WRC and Labour Court generally expect employers to meet a higher procedural standard in disciplinary processes than the Employment Tribunal and Employment Appeal Tribunal would in the UK.
  

• In relation to equality law, the UK “protected characteristics“ and Irish protected “grounds“ provide broadly the same protections. The following are protected in both jurisdictions: age; disability; race; religion; and sexual orientation. There are subtle differences, though, in certain respects: 
  • members of the Traveller community are specifically protected in Ireland (but are covered by the “race“ characteristic in the UK); 
    
  • “sex“ is a protected characteristic in the UK and “gender“ is a protected ground in Ireland. While “gender reassignment“ is a specifically protected characteristic in the UK, it is covered by the “gender“ ground in Ireland; and
    
  • “pregnancy and maternity“ is a specific protected characteristic in the UK, whereas “family status“ provides a slightly broader protection for parents in Ireland. 
    
• The definition of a disability in Ireland is much wider than in the UK. In particular, there is no requirement for the condition in question to have a “substantial and long-term adverse effect“. Short-term conditions, such as treatment following a kidney infection, have been determined to be a disability in Ireland.  
  

• Agency workers in Ireland have all rights under the EU Temporary Agency Work Directive from day one. There is no distinction between “day one“ and “week 12“ rights. In addition, and most significantly, the “end-user“ is liable for any unfair dismissal claims in Ireland as if it were the employer. This leaves end-users in an unusual position where they do not want to act as the employer, yet will be liable for an unlawful dismissal by the employment agency. We recommend a carefully drafted indemnity to protect the end-user. 
  

• Unlike in the UK, there is no intermediate “worker“ status in Ireland, individuals are either employees or independent contractors. Several draft bills have been initiated recently proposing changes to the classification of employment status, but it is a case of “watch this space“ for the moment.
  
  
• Employers are not currently required to pay statutory sick pay, statutory maternity pay, statutory adoption pay or statutory paternity pay in Ireland. Instead, employees can apply to the Department of Employment Affairs and Social Protection for illness benefit, maternity benefit, adoptive benefit and paternity benefit. If employees have made enough PRSI contributions (the Irish equivalent of National Insurance), they are entitled to maternity benefit for the first 26 weeks of maternity leave (or adoptive benefit for the first 24 weeks of adoptive leave).
  
• Maternity leave is shorter in Ireland (42 weeks) and “keeping in touch“ days do not exist. Adoptive leave is 40 weeks, and there is no shared parental leave. Paternity leave is a relatively new concept in Ireland, having only been introduced in 2016. Employees are entitled to two weeks‘ paternity leave, which must be taken within six months of the child‘s birth or adoption.  

The above represents a high-level overview of the main employment law differences between the UK and Ireland. While many of the similarities result from both countries having a common law system and an analogous approach to employment concerns, a crucial driver of employment law developments in both the UK and Ireland has been the EU. Regardless of how this may change in the future, the UK approach to employment rights and workplace relations will most likely continue to influence their development in Ireland.