Minimum Notice and Terms of Employment Acts 1973-2005

Applicability

The Minimum Notice and Terms of Employment Act applies to all employers and to all employees who have continuously worked for the same employer for at least 13 weeks. The Act explicitly states that it does not apply to members of the employer’s immediate family, if living with him or her and if employed in the same household or on the same farm. Additionally, it does not apply to members of the Defence Forces (except temporary staff in the Army Nursing Service), members of Garda Síochána and to seamen signing on under the Merchant Shipping Act, 1894.

The Minister is granted the authority by the Act to declare exceptions or extend the Act’s applicability to specific classes of employment through ministerial orders. This flexibility allows the Act to accommodate diverse employment scenarios.

Minimum Period of Notice 

A significant aspect of the Act is the stipulation of minimum notice periods for terminating employment contracts by employers. These statutory minimum notice periods vary based on the duration of the employee’s continuous service with the employer, ranging from one week to eight weeks. Employees with less than 13 weeks of continuous service do not fall under the scope of legislation. Minimum statutory notice periods are laid out below:

• 13 weeks to 2 years = 1 week notice
• 2 years to 5 years = 2 weeks’ notice
• 5 years to 10 years = 4 weeks’ notice
• 10 years to 15 years = 6 weeks’ notice
• 15 years+ = 8 weeks’ notice

The Act empowers the Minister to alter these minimum notice periods and renders void any contractual provision offering a notice period less than that specified in the legislation, reinforcing these statutory minimums. Nevertheless, the parties to the contract may agree to a longer notice period. Employers requiring longer periods of notice should provide for this in the contract of employment.

Rights and Obligations during Notice Period

The Act outlines the rights and obligations of both employers and employees during the notice period. It establishes that an employer is obligated to pay the employee according to the terms of the employment contract. However, certain exceptions exist, such as when an employee voluntarily terminates their contract in response to a notice of lay-off or short-time.

The Act also recognises the right of employees and employers to waive notice on specific occasions or accept payment in lieu of notice. Where an employee accepts payment in lieu of notice, the date of termination of the employment, for statutory redundancy, is the date on which notice, if given, would have expired. Additionally, the Act clarifies that it does not impede the employer’s right to termination of a contract without notice due to a misconduct of the other party.

Although “misconduct” is not defined, it is usually of the kind referred to as “gross misconduct”, e.g., serious disciplinary offences, such as violence, theft or gross negligence. Depending on the role in question, misconduct, such as persistent breaches of company rules, turning up for work under the influence of alcohol or persistent negligence of a lesser order than “gross negligence”, is not grounds for dismissal with no notice. Such dismissals may be held to be not unfair under the Unfair Dismissals Acts but still leave the employee’s right to notice intact.

If the employee resigns and claims constructive dismissal, no notice or payment in lieu of notice is due from the employer, even where the constructive dismissal is held to have taken place and is unfair.

If the employee claims redundancy following a period of lay off and short-time, he or she is not entitled to notice, as it is the employee who is terminating the contract of employment. This procedure should not be confused with situations where employees apply to be considered for voluntary redundancy. Such cases are treated as redundancy dismissals and statutory or contractual notice, as appropriate, is due.

Written Statement of Terms of Employment

The Act mandated that the employees have the right to request a written statement containing essential particulars about their employment, and mandated employers to furnish this information. This section has been substituted by Terms of Employment (Information) Act, 1994 and most recently amended by European Union (Transparent and Predictable Working Conditions) Regulations, 2022. For additional information on contracts of employment, please read our Essential Elements of Employment Contracts blog.

Definition of Continuous Service

An employee’s service is deemed to be continuous unless he or she is dismissed or leaves voluntarily. Continuous service is not broken by: a dismissal of an employee, followed by an immediate re-employment; an absence due to sickness, injury, lay off or by agreement with an employer; a transfer of undertaking, unless the employee received and retained payment from the transferor at the time of and by reason of the transfer; any entitlements to health and safety, maternity, adoptive, parental, force majeure or carer’s leave; and a lockout or a strike.

When calculating computable service, account should be taken of: periods of statutory health and safety, maternity, adoptive, parental or force majeure leave; the first 26 weeks of absence due to illness, lay off or other absence agreed with the employer; periods of service with the Reserve Defence Forces; periods of lockout; and periods of absence due to a trade dispute in another business.

Prioritising Employee Compensation in Winding Up and Bankruptcy

The Act establishes the priority of employee compensation under section 12 in the distribution of a company’s assets during winding up or a bankrupt individual’s estate. This priority ensures that employees receive compensation before other debts are settled.

The Minimum Notice and Terms of Employment Act Conclusion

The Minimum Notice and Terms of Employment Act, 1973, stands as a comprehensive piece of legislation that sets out the minimum requirements and protections for employees and employers. Its detailed provisions cover various aspects of employment, aiming to establish fair and consistent standards in the workplace. Employers and employees alike should be aware of their rights and obligations under this Act to ensure a transparent and equitable working relationship.

This article was written by Mislav Magas, HR Consultant at Action HR Services

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DISCLAIMER:
The information in this article is provided as part of the Action HR Services Blog. Specific queries should be directed to a member of the Action HR Services Team and it is recommended that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct on 8th January 2024.