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What are the requirements relating to advertising positions?
It is unlawful to discriminate against prospective employees in relation to access to employment, which includes job advertisements. It is also unlawful to advertise a job in such a way that the advertisement could reasonably be interpreted as indicating an intention to discriminate. In certain circumstances, employers can impose eligibility requirements which may be indirectly discriminatory, provided that these:
- pursue a legitimate objective;
- are necessary to achieve that objective; and
- are proportionate, such that the difference in treatment can be objectively justified.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Criminal record checks are permitted in Ireland in very limited circumstances. All searches must be performed by the National Garda Vetting Unit (NGVU) of the national police service (An Garda Síochána). However, the NGVU will conduct such a search only where it relates to a person who will be working in certain limited areas (eg, childcare, with vulnerable adults or in private security services).
In addition, it is an offence under data protection legislation to require an individual to submit a data subject access request to the NGVU in respect of his or her criminal record – save for requests in respect of the limited roles set out above.
Candidates may be asked to declare that they have no criminal convictions on their employment application, subject to questions being asked consistently of all applicants for a particular role so as not to discriminate. In practice, however, the employer cannot reliably verify the answers given as – unlike many other countries – Ireland does not have a publicly available database to perform such checks. If it is subsequently discovered that any declaration given by the employee is false, it may be addressed under the company’s disciplinary procedure. Any possible adverse action should be made clear to the candidate at the outset.
Self-declaration for previous criminal convictions is required only where it is relevant to the specific role, for a specified and legitimate purpose and not excessive in relation to that purpose. Such information must not be used for any other purpose.
(b) Medical history?
Pre-employment medical checks may be justified where health or fitness is relevant to the role. However, employers should be aware that an employee’s medical history constitutes sensitive personal data under the Data Protection Acts 1988 and 2003; therefore, the employee’s express written consent to obtaining this information should be sought.
(c) Drug screening?
Although there are no express or statutory restrictions against drug and alcohol screening of job applicants, there are risks associated with such tests due to the various restrictions and duties under data protection and employment equality legislation.
A drug or alcohol addiction could be considered as a disability for the purposes of disability discrimination protection. Thus, depending on the results obtained and whether these influence the employer’s decision to hire, it could raise a potential disability discrimination claim.
Such information also constitutes sensitive personal data and should be processed in accordance with the requirements of data protection legislation.
(d) Credit checks?
Credit checks are permissible, but only to the extent reasonably required for the nature of the role. The information should be obtained and processed in accordance with data protection legislation. For example, while checks of this nature are unusual in Ireland, where the candidate will be in a position with financial responsibility, an employer may wish to ensure that the candidate has no history of poor financial management skills.
(e) Immigration status?
Employers may request immigration status verification where this is necessary to ensure that the candidate has the right to work in Ireland.
Employers must ensure that such verification is relevant and proportionate to the legitimate aim of ensuring that the prospective candidate has the right to work in Ireland.
Any job offer should be made conditional upon the provision of immigration status verification.
An employer must retain the particulars of an employee’s employment permit on file in the event of a Workplace Relations Commission workplace inspection.
(f) Social media?
Employers may use social media to screen prospective employees and this practice is becoming increasingly common in Ireland. However, employers should be cautious about how they conduct social media checks. The prudent course of action is to notify prospective employees that their social media profiles might be checked. Prospective employees should be given the opportunity to comment on the information obtained before a decision is made in relation to their recruitment. Again, employers should be mindful of their duties under data protection legislation and employment equality legislation in conducting such screening.
Employer verification and references
It is common practice for prospective employers in Ireland to:
- ask candidates to provide the names and contact details of one to two previous employers for references; and
- notify candidates that i such referees may be contacted where a job offer is being made.
Education verification It is common practice for prospective employers to request proof of a candidate’s education. Therefore, most candidates are required to provide copies of qualifications (eg, degrees), following a job offer. It is uncommon for prospective employers to request such information directly from the institution; however, in the event that an employer does so, notice must be provided to the candidate explaining the specific purpose for which such information will be used. The employer must ensure that such verification is relevant and proportionate to the aim of ensuring that the prospective candidate has the relevant qualifications to perform the role and such information must be requested consistently from all candidates for a particular role so as not to discriminate.
Identity verification In relation to identity verification, an employer may request visual review of a candidate’s passport. However, data protection legislation regarding the retention of such records should be considered. Guidance from the data protection commissioner states that employers need not keep a copy of an employee’s passport on file; this may also apply by extension to other proof of identification documents.
Individuals in Ireland have a personal public service (PPS) number – similar to an employee’s social insurance number – for taxation and payroll purposes. An employer cannot request an individual's PPS number until the individual has been offered or has commenced employment.
Wages and working time
Is there a national minimum wage and, if so, what is it?
Since January 1 2017 the national minimum wage for an experienced adult employee is €9.25 per hour. There are some exceptions to those entitled to receive the national minimum wage and sub‑minimum rates apply in respect of certain young people and those in the first two years of employment.
Are there restrictions on working hours?
Under Irish law, the maximum working week is 48 hours, aggregated over a reference period whose duration varies according to the employment but is typically four months, with some exceptions. For night workers, the reference period is two months.
Hours and overtime
What are the requirements for meal and rest breaks?
Employers must ensure that employees take daily rest breaks as follows:
- 15 minutes where up to four-and-a-half hours have been worked; and
- 30 minutes where up to six hours have been worked, which may include the first break – this is normally satisfied by the taking of a meal break (eg, lunch).
Additionally, employees are entitled to:
- 11 hours’ daily rest per 24-hour period; and
- one period of 24 hours’ rest per week preceded by a daily rest period (11 hours).
How should overtime be calculated?
Employees are not entitled to payment for overtime unless this is expressly provided for in their employment contract. However, employees are entitled to compensation by way of:
- an allowance;
- an increase in salary; or
- paid time off in lieu for hours worked on a Sunday, unless the employee’s salary already takes account of the requirement for Sunday work.
What exemptions are there from overtime?
As stated above, employers are not obliged to make payment for overtime hours worked, unless this is provided for in an employee’s contract or is an implied term through custom and practice. However, an employee must not be required to work in excess of a 48-hour week, aggregated over the applicable reference period (generally four months). The exception to the 48-hour working week is narrowly defined in Ireland and there is no general opt-out provision in the applicable legislation. Thus, the exception is typically reserved for senior employees who have autonomy over their working hours.
Is there a minimum paid holiday entitlement?
Under Irish working time legislation, all time that is worked qualifies for paid annual leave. Employees are entitled to the greater of the following:
- four working weeks’ statutory paid annual leave for a leave year in which the employee works 1,365 hours or more;
- one-third of a working week for each month of a leave year in which the employee works 117 hours, up to a maximum of four working weeks; or
- 8% of the hours worked by the employee, up to a maximum of four working weeks.
There are nine public holidays in Ireland each year. Employees who are entitled to public holiday benefit are – at the employer’s discretion – entitled to the following:
- a paid day off;
- a paid day off within one month of the public holiday;
- a day of annual leave; or
- an additional day’s pay.
What are the rules applicable to final pay and deductions from wages?
Under Irish law, an employee is entitled to payment in respect of accrued but untaken annual leave on the date of his or her termination of employment.
Deductions from wages Employers cannot make deductions from employees’ wages unless:
- the deduction is required or authorised under statute (eg, tax and social security deductions);
- the deduction is required or authorised under contract; or
- the employee has given prior written consent to the deduction.
What payroll and payment records must be maintained?
Employers are obliged to retain payroll details, including:
- gross to net;
- rate per hour;
- bonuses; and
- service charges.
Employers must also be able to demonstrate that employees are provided with payslips.
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