Employment Law in reality

ldxo15wus6fpgm

Hi all.

I'd like to start off by saying this is purely hypothetical. I recently finished my law degree and was having a debate with a few family members today over the actual effectiveness of employment law, especially in relation to termination of employment. While the debate started over something that really did happen, it moved on to a different thing which has not happened.

I mentioned employment law as one of my favourite subjects during the degree, someone asked what it was actually about and I explained and then someone else said it was useless for many people. We argued for a while over how helpful the law is in various situations, and eventually got around to talking about someone who is sacked from a job without procedures being followed.

So say someone is working in informal employment (no paye/prsi/usc being paid), for example a waiter in a restaurant, or the main focus of our debate, a barman in a pub. They have no written contract etc. just the agreement that they show up whenever needed and get however much money.

They have been working there for more than a year so they have some rights (otherwise the debate would have ended there), and one day they are told there won't be any work for them any more, and that's all they're told, and all the notice they are given - 1 week for the purposes of the debate.

No other employees are relieved, although for argument's sake we said their hours have been shortened because for example it's a seasonal business i.e. busier at certain times of the year.

The person has been told they are being made redundant, they don't qualify for any redundancy payment because they haven't been there for 2 years, and basically suspects that they have just been sacked on a whim. However it might be difficult to prove this as other employee's hours have been shortened too.

I argued that the persons could go for unfair dismissal because of unfair selection for redundancy and no genuine need for redundancy, even if they don't have 2 years of service to qualify for a redundancy payment (pretty sure this is right). I said that while it would probably be easier for them if the employer didn't reject a rights commissioner investigating it, they still stood a decent chance in the EAT.

They argued that someone in this situation is unlikely to win in either case because they can't really prove anything, especially if they had worked in a place that gets quiet at certain times of year, and that because of this the law is ineffective. I'm saying that in a more polite way than they did :pac:

They also argued that someone in this position is unlikely to pursue something like this in the first place because of lack of money to get legal advice or because they would be afraid that revenue would go after them for unpaid tax. But that's a separate issue.

Would anyone with some experience in employment law help me clear this up? In reality do terminated employees often win cases like this in the EAT?

johnnyskeleton

You raise a good point about the unfair selection for redundancy if there is no procedure in place. Also a minimum notice and terms of employment claim for not providing a written notice of the terms of employment etc. These are the main issues, but as you say in the absence of discrimination on the grounds in the unfair dismissals act, it's not an unfair dismissal. Still, it's up to the employer to prove that the dismissal was fair.

Sofia Tart Varsity wrote: »

They argued that someone in this situation is unlikely to win in either case because they can't really prove anything, especially if they had worked in a place that gets quiet at certain times of year, and that because of this the law is ineffective. I'm saying that in a more polite way than they did :pac:

Employment law doesn't protect everybody from losing their jobs, it only protects certain employees in certain situations. So assuming that your friend is correct and there is no employment law redress in this case, that's because the employer has acted perfectly legally and it is just unfortunate. That doesn't mean that employment law is ineffective - the law works perfectly well - it just doesn't do what your friend wants it to do.

I would say to him that if he thinks private companies are not allowed to terminate their staffs employment and that anyone who loses their job should be compensated "just because", he should go back to Soviet Russia.

They also argued that someone in this position is unlikely to pursue something like this in the first place because of lack of money to get legal advice or because they would be afraid that revenue would go after them for unpaid tax. But that's a separate issue.

Going to the rights commissioner is free and is fairly user friendly. However, there is a problem that if a person feels they need representation they cannot recover legal costs against the other side. Some unions offer to provide a lawyer or a union official to represent members at employment hearings, so he could always have joined a union.

If by taxation you mean he was working under the counter, then he was working illegally and arguably is not entitled to the benefit of employment law at all. As is only proper. Anyone who ignores the statutes that are against their interests cannot realistically seek to rely on those in their favour. That's kinda like the freemen seeking to rely on magma Carta while ignoring every other statute.

Would anyone with some experience in employment law help me clear this up? In reality do terminated employees often win cases like this in the EAT?

Again, only if their situation falls within one of the statutory grounds for a claim.

Marcusm

If you're interested in this area, you should look into the UK phenomenon of zero hours contracts. These may have been around for a while but have become widespread in retail as a manner of effectively managing costs and employment rights. The employer commits to no actual work and difficult employees can find themselves zero'd out; as can perfectly useful employees when there is a need to reduce hours. Redundancy becomes irrelevant.

ldxo15wus6fpgm

I'd agree that people shouldn't be able to claim off their employer just because they lose their jobs, in fact I think some people are too well protected. The main idea here though was that the person would have a claim because of unfair selection and not enough notice given. The argument was whether someone in this position would be likely to get anything because it's so difficult to prove anything in a scenario like that.

Thanks for the replies both of you!

Cody Pomeray

s. 8 (11) of the Unfair  Dismissals Act 1977 as created by s.7(d) of the Unfair  Dismissals (Amendment) Act 1993:

“Where the dismissal of an employee is an  unfair  dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the  Income  Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the  dismissal”.

so tax violations do not negate legal remedy under unfair dismissals.

see Hussein v. Labour Court where Hogan J distinguishes substantive illegality (e.g. absence of a work permit) from tax and social welfare fraud.

obvious issues OP mentions remain.

Meanwhile, this raises another unfair aspect of employment law. The lesson to employers in Hussein? If you're going to trample over your workers, make sure they're undocumented migrants.