The Gazette 1993

GAZETTE

JAN/FEB 1993 '

create "greater transparency" in the labour market. The scope of the directive is very wide. It applies to "every paid employee having a contract or employment relationship defined by . . . and/or governed by the law in force in a member-state." On temporary employment relationships of one month or less, employees with a working week not exceeding eight hours, and "casual and/or specific" employment relationships where this is "justified by objective considerations" (Article 1) are excluded. This will have a major effect on Irish law in that it will straight away reduce the exemption limit from eighteen hours per week to eight hours per week. This creates another new category of employee in Irish law. It will be recalled that in 1991 the Oireachtas defined a new creature, namely, the "regular part- time" employee who was employed with thirteen weeks continuous service and who would be normally expected to work for not less than eight hours per week. The new EC Directive will not be sufficiently implemented by utilising the concept of the regular part-time employee. This will lead to an unnecessarily confusing and complicated situation whereby certain protective legislation will apply to differing groups of part-time workers in different ways. Employers will be obliged under the directive to provide employees with documents notifying them of the "essential aspects" of their contract or employment relationship. The information required includes: date of commencment, identities of parties, place of work; job title or category, or a brief description of the work; amount of paid leave entitlement; relevant notice period; rate and frequency of renumeration; working hours; and, where appropriate, the collective agreements governing the employee's conditions of work (Article 2). This information Substantive Information Requirements

accessible to him in some other way. Finally an employer must notify an employee of the particulars of section 9 within one month after the employee commences work with the employer. The only means of enforcement of the Act of 1973 was contained in section 10 which provided for prosecution by the Minister leading to a summary conviction to a fine not exceeding IR£25.00. It is doubtful if a prosecution has ever been brought under this Act and is must be concluded that the requirement to give particulars has largely proved ineffective. In contrast, in England the system of prosecution was changed to a right to bring the failure of employer to furnish the statement to an Industrial Tribunal. What is the effect of conflict between the written statement and terms of employment? The written statement is supposed to reflect the terms of the contract of employment at the date it is given. From the employer's point of view this brings home to the employee his obligations and from the employee's view point it provides him with detailed information about his rights. The statement is useful evidence in legal proceedings between the parties but it cannot be regarded as conclusive. Under UK case law, the written statement of particulars provides "very strong prima facie evidence" of the terms of the contract, but, "does not constitute the written contract between the parties" (Browne-Wilkinson LJ in System Floors (UK) Ltd., -v- Daniel [1981] IRLR 475). The recognition that the written particulars are essentially the employer's version of the terms of the employment contract provides an important safeguard for the employee against the assumption that the employer's unilateral statement is a legally binding record of the contractual position. The existing law may leave either party at a serious disadvantage in subsequent legal proceedings. Although the written statement does

not constitute the contract, reliance on the terms contained in a statement may give rise to an estoppel which prevents the employer from denying that they are the terms under which the employee was engaged. There are other provisions in Irish law which give employees information about their contractual rights. In particular section 14 of the Unfair Dismissals Act, 1977 provides that an employer must, not later than twenty eight days after he enters into a contract of employment with an employee, give the employee a notice in writing setting out the procedure which the employer will observe for the purpose of dismissing the employee. Any alterations to the procedure must similarly be notified to the employee within twenty eight days. The European Communities (Safeguarding of Employees Rights and Transfer of Undertaking) Regulations, 1980 provide for certain consultation and information procedures between employees and the transferor and transferee of a business. Employees have to be informed, in good time, before a transfer of a business takes place as to the implications for them, the reason for the transfer, and measures envisaged in relation to the employees. Finally, the Payment of Wages Act, 1991 provides for a statement in writing setting out the employee's pay and deductions from pay i.e. a pay slip. The preamble to the directive justifies the adoption of the directive by identifying certain developments: new forms of work, the increasing diversity of types of employment, and the considerable disparities between members-states' current rules on the provision of information to employees about the main terms of their employment. The preamble states that the directive is designed to provide employees with "improved protection against possible infringement of their rights" and to The EC Directive

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