Background information on applicants

Background checks

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

Under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, an adult will not have to disclose his or her conviction in respect of a range of minor offences after seven years.

Data obtained by employers must be processed and held in compliance with data protection legislation. Any information in the public domain can generally be accessed within the context of data protection requirements.

In instructing a third party to conduct criminal background checks, the employer remains a data controller under the EU General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (as amended), and the third party acts as a processor as it would be processing the personal data of candidates on behalf of the employer.

The employer must ensure that the third party conducts all processing in compliance with the GDPR. Additionally, the employer would be required to enter a data processing contract with the third party, with that contract to contain each of the clauses required by article 28 of the GDPR. If an investigator is engaged, then the investigator must be registered with the Private Security Authority.

Medical examinations

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Individual offers of employment can be made conditional upon satisfactory health checks, but a prospective employer may be liable under a discrimination claim if the offer is not confirmed based on the information disclosed by the health checks. The compensation available for pre-employment equality claims is €13,000.

Medical reports given by a medical practitioner responsible for an individual’s care are subject to data protection legislation and there must be a legal basis for processing such information.

Medical information about an individual also constitutes ‘sensitive personal data’ under the Data Protection Acts 1988 to 2018.

Drug and alcohol testing

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

Employers are required (under Section 8 of the Safety, Health and Welfare at Work Act 2005) to ensure the safety, health and welfare at work of all employees. This includes ensuring the prevention of improper conduct or behaviour that is likely to put employees at risk. An employer may require an applicant to submit to a drug or alcohol test to the extent that this is required to ensure that the applicant may safely carry out the proposed role. These tests must be necessary and proportionate.

Hiring of employees

Preference and discrimination

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

No. There are no requirements to give preference to particular groups of people. Employers are obliged under the Employment Equality Acts not to discriminate on any of the discriminatory grounds listed under the Acts (ie, gender, marital status, family status, sexual orientation, religion, age, disability, race, or membership of the Traveller community) concerning access to employment.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

Yes. Under the Terms of Employment (Information) Acts 1994 to 2014, employers are required to provide employees with key terms and conditions of employment within five days of commencing employment. These include:

  • the full name of the employer and the employee;
  • the address of the employer;
  • the expected duration of the contract (where the contract is temporary or fixed-term);
  • the rate or method of calculating pay; and
  • what the employer reasonably expects the normal length of the employee’s working day and week will be.

 

An employer that does not comply with this requirement will be guilty of an offence and liable for a fine of up to €5,000 or a term of imprisonment of up to 12 months, or both. Employees with one month’s service may claim up to four weeks’ compensation for this breach.

An employer must also give an employee a written statement of his or her terms of employment within two months of the commencement of employment. If an employer does not comply with this requirement, employees are entitled to up to four weeks’ compensation. This written statement of terms must contain:

  • the full names of the employer and the employee;
  • the address of the employer;
  • the place of work;
  • the job title;
  • the commencement date, expected duration of the contract (if temporary) and the expiry date (if fixed-term);
  • reference to any registered employment agreement or employment regulation order that applies to the employee;
  • the rate of calculation of the employee’s remuneration;
  • details stating that the employee may request a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section;
  • the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval;
  • any terms or conditions relating to:
    • the hours of work (including overtime);
    • paid leave (other than paid sick leave);
    • incapacity for work owing to sickness or injury and paid sick leave; and
    • pensions and pension schemes;
  • the period of notice the employee is required to give and entitled to receive to determine the employee’s contract of employment or the method for determining such periods of notice; and
  • a reference to any collective agreements that directly affect the terms and conditions of the employee’s employment.

 

To what extent are fixed-term employment contracts permissible?

Fixed-term contracts are permissible; however, certain rights and protections are given by the Protection of Employees (Fixed-Term Work) Act 2003. There is no maximum duration of contracts, but successive fixed-term contracts of four or more years will be deemed to be contracts of indefinite duration unless objectively justified by the employer.

Probationary period

What is the maximum probationary period permitted by law?

There is no statutory maximum probationary period. Typically, an employer will provide for a probationary period of six months subject to extension at the employer’s discretion. In practice, probationary periods should not exceed 11 months (with a two-week notice period applicable during probation) to ensure that an employee does not accrue service to maintain a claim under the Unfair Dismissals Acts.

Classification as contractor or employee

What are the primary factors that distinguish an independent contractor from an employee?

An employee is employed under a contract of service and works under the control of the employer. An independent contractor provides services under a contract for services and does not operate under the control of the party to whom he or she is providing services.

The factors that a court will take into consideration in distinguishing an independent contractor from an employee will include:

  • the bargaining power of the parties and whether the written contractual terms accurately reflect the reality of the relationship;
  • the mutuality of obligation (ie, the employer must provide work and the employee must perform duties);
  • the integration of the ‘employee’ into the business; and
  • the ability or inability to use substitutes.

 

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

Yes. Employers must comply with the Protection of Employees (Temporary Agency Work) Act 2012. This implements EU law to guarantee that basic employment conditions are no less favourable for temporary agency workers and that they have the same access to facilities and opportunities as permanent staff in respect of:

  • the duration of working time, rest periods, night work, annual leave and public holidays;
  • pay;
  • work done by pregnant women and nursing mothers, children and young people; and
  • action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.

 

Temporary agency workers must also have equal access to facilities such as childcare and must be informed of permanent employment opportunities.