The Gazette 1993

GAZETTE

JAN/FEB 1993 '

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

Directive

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

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.

Substantive Information

Requirements

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