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Apr 7th, 2012 Archives

Are you worried about redundancy and redundancy entitlements in Ireland?

Do you need to access a redundancy calculator to check what you can expect?

redundancy-calculator

Hopefully this comprehensive article will help give you a good, sound understanding of redundancy in Ireland, redundancy payments, notice periods and your employment rights in Ireland.

Non-collective redundancies in Ireland

An employer’s obligations in redundancy situations will depend on whether a collective redundancy is proposed or it is a “normal” redundancy in a small business in Ireland. The focus of this piece is non-collective redundancies; in collective redundancies there will be additional requirements on the employer imposed by the Protection of Employment Acts 1977 to 2007 and various regulations and other legislation.

In non-collective redundancies in Ireland there are no specific procedural requirements set out to carry out a redundancy dismissal.

What the employer must be very aware of though is the Unfair Dismissals (Amendment) Act, 1993 as this act holds that if the conduct of the employer is unreasonable in carrying out a redundancy then it may amount to unfair dismissal.

So it is vital that the employer act reasonably in carrying out a redundancy and a principal factor in how reasonable the behaviour was will be how the employer selected the employee(s) for redundancy and whether there were other alternatives to redundancy such as alternative employment or some other type of work in the employer’s business.

From an employer’s perspective it is important to be able to point to the reasonableness of his conduct when faced with the necessity for redundancy.

Even though it is not a procedural requirement from a legal perspective it is good practice for the employer to hold meetings and discussions to explore any alternatives and it would be prudent for the employer to make a record of these discussions and proposals

The ability of the employer to be able to point to a paper trail of how the decision to carry out redundancies was arrived at can prove invaluable at a later date, for example at an EAT or Rights Commissioner hearing.

redundancy-entitlements

The key point for an employer is to be able to demonstrate that people were selected fairly for necessary redundancies and that the employer acted reasonably at all stages of the process.

The selection of employees for redundancy has led to many employers paying quite a high price at a later date before the Employment Appeals Tribunal and unfortunately there are no criteria laid down in legislation for the selection of employees.

Some factors to be considered by the employer should include

  • Attendance record
  • Ability
  • Disciplinary record
  • Skill level

Many employers employ a policy of “last in, first out”. If there is a procedure in place in the workplace to deal with redundancy, as there is with most unionised workplaces, the employer will have to be able to show that the procedure was used to select each employee made redundant.

Nevertheless, no matter what criteria are used, the employer may well have to stand over his/her selection procedures at a later date and being able to objectively justify his choice will be his best defence.

It is worth noting also that the idea of “impersonality” should run through any redundancy decision-this means that the person is not redundant but it is actually the job that is deemed to be redundant-this may be due to change in the workplace or a downturn in business.

redundancy-ireland

Redundancy Calculator Ireland

Calculating your redundancy entitlements is pretty straightforward with the redundancy calculator provided online by the Department of Social Protection.(See link at the end of this article)

What is redundancy?

The legal definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by the Redundancy Payments Act 1971 and 2003-

an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

 

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

 

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

 

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Key factors in redundancy

There are two critical factors to be gleaned from this definition-

The redundancy should arise from the doing away with the job, not the person. This feature of impersonality is necessary in a genuine redundancy situation.

redundancy-payments

Change-the change must arise as a result of change in the workplace which might range from a closing down of the business to a simple reduction in number of employees.

Redundancy entitlements

To be entitled to a redundancy payment you must have the requisite period of service served which is:

104 weeks of continuous employment attained after the age of 16 years.

To be entitled to redundancy you will need to have been dismissed from your job; if you are given a new contract of employment or your old contract is renewed you will not be entitled to redundancy.

Short time/lay offs

You can be placed on short time or laid off where the employer is unable to provide work but only where the employer reasonably believes that the lay off will not be permanent.

The employer is generally obliged to pay the employed during this time although there are exceptions to this general rule depending on custom and practice in specific situations.

Redundancy payments

Redundancy payment entitlements are calculated by reference to weeks per year of service and is basically calculated as follows:

  • 2 weeks’ pay for each year of continuous employment over the age of 16 years
  • An additional one week’s normal earnings.

All earnings over €600 per week are disregarded though in calculating statutory redundancy payments and redundancy payments are tax free.

(Continuous employment is not broken by layoffs, holidays or sickness.)

Redundancy calculator

You can access a redundancy calculator on the website of the Department of Social Protection to calculate your redundancy entitlements. Click here to go to calculator.

See also solicitors Dublin if you have any queries arising from this article.

By Terry Gorry Google+

The Civil Summons procedure is the method of issuing legal proceedings in the District Court.

The District Court deals with claims with a value up to €6,348.69 (IR£5,000) and many people in Ireland will have been served with, or served, a Civil Summons in the last 18 months to pursue a debt.

civil-summons-procedure-ireland

Debt collection in Ireland has become increasingly active and pressurized in the last two years and an understanding of how to collect a debt or how to defend such an action is important to avoid having a judgment granted against you.

 

If you want to pursue a debt for less than €6,348.69 you can issue and serve a Civil Summons in your District Court area or in the District Court area of your debtor. Issuing a Civil summons in Dublin is slightly different than outside of Dublin.

Issuing a Civil Summons

To issue a Civil Summons in Dublin you simply bring your Summons along to the District Court office in the Four Courts. You will need two copies and one will need to be stamped with stamp duty of €20.

district-court-civil-summons

The District Court office will stamp your summons with a date. This date is called the return date which simply means that you appear in court on that date and will be given a date for the hearing of your claim.

Service of a Civil Summons

It is necessary though to firstly serve the Summons on your Debtor and you do this by serving a copy of the Civil Summons on them.

 

Service of any summons or legal document is determined by the rules of the various courts. Generally if you are suing a company you serve on the registered office of the company by ordinary post.

 

Service on an individual can be carried out by registered post or by personal service.

 

All of the rules in relation to service of legal papers and precedents for drafting your legal papers, such as your Civil Summons, can be found on the courts website at http://www.courts.ie

 

Once you have served your summons the debtor must file a Notice of Intention to Defend the proceedings in the office of the District Court. Once they do this your case will appear in the Court’s list on the return date and will be given a hearing or trial date.

 

If no Notice of Intention to Defend is filed by your debtor then you will be free to obtain a judgment against your debtor without any further court appearance.

 

If this is the case then one you get your Judgment or Summary Decree you send it to the Sheriff of the District court area for him/her to try to recover the value of your Summons.

 

Clearly if you are the recipient of a Civil Summons for A Debt then you should either make sure to fill out the Notice of Intention to Defend form and give it back into the District Court office and a copy to the person who is suing you (or their solicitor).

 

If you are not comfortable doing this yourself then you should call to a solicitor who will look after it for you.

 

But however you decide to act, do not bury your head in the sand if you are served with a Civil Summons or you run the risk of having Judgment granted against you in your absence.

By Terry Gorry Google+

The Trade Marks Act, 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing the goods or services of one undertaking from those of other undertakings”.

trademark-law

A trade mark is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses and the registration of a trade mark is an important task for any small business owner.

A trade mark may consist of words, (including personal names), designs, logos, letters, numerals or the shape of goods or of their packaging, or of other signs or indications that are capable of distinguishing the goods or services of one undertaking from those of others.

 

Trade Mark Registration

 

Not all trade marks are capable of registration. Registration will be refused for a trade mark which:

  • is not capable of being represented graphically or not capable of distinguishing good or services of one business from those of other businesses,
  • does not have any distinctive character,
  • consists exclusively of signs or indications that designate essential characteristics of goods or services (e.g. their quality, intended purpose, geographical origin etc.),
  • consists exclusively of signs or indications which are customary in the language in the trade,
  • consists exclusively of the shape, arising from the goods themselves, or which is necessary to obtain a technical result, or gives substantial value to the goods,
  • is contrary to public policy or principles of morality,
  • is likely to deceive the public, e.g. as to the nature, quality, or geographical origin of the goods or services,
  • is applied for in bad faith,
  • is identical with or similar to a trade mark that is already on the Register in respect of identical or similar goods.

trade-mark-law-ireland

Trade mark registration creates an official record of your rights as owner of a particular trade mark and makes it easier to prevent others from using it.

 

Trade mark registration grants a statutory right, subject to certain conditions, to prevent others from using the trade mark without the registered proprietor’s permission – i.e. to prevent infringement.

 

Trade mark registration confers an exclusive right to authorise others by means of licensing to use the trade mark for the goods and /or services for which the trade mark is registered.

 

You should consider registering your trade mark if it is important to you that your customers are able to identify your products and services from those of your competition.

 

Unauthorised use of a trade mark means the rightful owner may lose business and goodwill.

 

Although trade mark registration is not obligatory, registration makes it easier to prevent others from benefiting from the reputation established by the use of a trade mark by allowing the proprietor of the registered trade mark to take infringement proceedings before the court.

 

The fraudulent application or use of a trade mark in relation to goods without the authorisation of the proprietor and/or the possession of goods or material bearing a mark identical to or nearly resembling a registered trade mark, may in certain circumstances, be a criminal offence, and criminal proceedings may be initiated under the Trade Marks Act, 1996.

Unregistered Trade Marks

If you use a particular brand for some period of time then you may have an unregistered trade mark. If someone infringes your brand or trade mark you will still have legal recourse to protect your trade mark.

 

However this will involve commencing legal proceedings under the common law heading of “passing off” and the onus of proof will be upon you to establish proof of your ownership of the unregistered trade mark. This can be costly and time consuming and you will not enjoy the protection of registration and the remedies provided by the Trade Marks Act, 1996.

trade-mark-registration

Benefits of Trade Mark Registration

The principal benefits of trade mark registration are

  1. Without registration you can only rely on a legal action for “passing off” to protect your rights
  2. Registration will help protect your business identity and goodwill
  3. It is proof of your ownership of the intellectual property rights of the trade mark
  4. Protection against other businesses whose products/services are defective who trade in the industry
  5. Protection against others using similar trade marks.

 

Types of Trade Mark

Ordinary or standard trade mark

The majority of all trade marks fall into this category. They consist of words, slogans, logos, etc. whose purpose is to distinguish the goods and services of their proprietors from those of other undertakings.

 

Collective mark

A Collective trade Mark is a mark that distinguishes the goods or services of the members of an association from those of others.

 

Certification mark

A Certification trade Mark is a mark that “certifies” goods or services as being of a certain standard or possessing certain qualities or other characteristics.

 

A certification mark can only be registered in the name of the proprietors if they themselves do not produce or provide the goods or services to which the mark is applied.

 

Series of trade marks

A series of trade marks is a number of marks, which resemble each other in their important features and differ only in respect of non-distinctive elements that do not substantially affect their identity.

 

Three-dimensional mark

A three-dimensional trade mark is a trade mark that consists of the shape of a product or its packaging.

Application for a Trade Mark(trade mark registration)

Any person or company etc who uses or proposes to use a trade Mark can apply to register that trade mark.

 

An application may be made either before the trade mark is put in use or afterwards. Generally speaking an application should be made to register a trade mark as soon as possible to ensure priority over anyone else who applies to register the same or similar mark.

 

To apply, complete the application form 1 on Patents Office website. The fee for filing an application may be paid at this time or within one month of that date.

 

An applicant may pursue his or her application personally or choose to employ the services of a registered Trade Mark Agent or solicitor.

 

If an application meets the criteria for registration, it is registered with effect from the date of application.

The Application Process

When an application (which contains the minimum information required) is received, a filing date and application number is assigned and a filing receipt is issued.

 

The Minimum requirements for a filing date are –

 

  • A request to register the Mark (completion of the prescribed application form meets this requirement),
  • The name and address of the person requesting the registration,
  • A representation of the trade mark,
  • A statement or list of the goods and/or services for which registration of the trade mark is sought.

 

The application is then examined as to its registrability. The examination process includes a search of relevant databases to ascertain whether the trade mark or a similar mark has previously been registered. If this is found to be the case, then the Office may refuse to register the trade mark.

 

The examination also addresses other obstacles to trade mark registration such as, for example, whether the mark is simply a laudatory statement of a product’s quality (e.g. “Best Quality”) or a sign that has become generic within a particular field of commercial activity. These are among a number of grounds on which an application for registration may be refused.

 

If it is proposed to refuse registration in a given case, the Applicant will be informed of the reasons why and will be afforded an opportunity to make arguments in support of the application. Before any decision to refuse becomes final, the Applicant will have a right to attend an oral hearing before a senior official of the Patents Office.

 

If the application is accepted for registration, details of the mark will be published in the Official Journal. Within 3 months of the advertisement of a trade mark, any person who objects to its registration may send a notice of opposition to the Office accompanied by the prescribed fee and the Office will copy this to the Applicant.

 

Each side (the Applicant and the Opponent) is then given an opportunity to file evidence in support of its case and the question of whether the mark should be registered is ultimately decided by a senior official of the Office.

Length of time

A trade mark registration can last indefinitely provided the registration is renewed. Registration is initially for a period of ten years (from the date of filing of the application) and it can subsequently be renewed every ten years on payment of the renewal fee.

 

If you need a trademark registered of if you are the victim of infringement of your trade mark please use the contact form to contact Solictitors Dublin.

By Terry Gorry Google+

The need for a written partnership agreement in any partnership is crucial.

Because if you do not have one, then the Partnership act 1890 will govern your relations with your partner.

partnership-law-ireland

Partnerships are an important part of business life in Ireland for a number of reasons.

 

1) any time 2 or more people come together to carry on business and do not form a company the law assumes they are in partnership.They are then subject to partnership law which dates back to the Partnership Act of 1890.

 

2) Professionals such as doctors,lawyers,dentists,vets,accountants are not allowed to form companies.

 

3) There are advantages over forming a company from the point of view of tax, accounting and disclosure requirements.

Unlike a company a partnership is not a separate legal identity which means that partners have unlimited liability, unlike directors or shareholders in companies.

 

And partnerships do not have to go through any registration process to be formed.

 

The downside is that each partner is liable for the losses of his co-partner in carrying on the partnership business, even where the other partner has defrauded clients of the business.

partnership-law-ireland1

What is a Partnership?

Partnership Act 1890 defines a partnership and essentially states that where 2 or more people carry on business with a common view of profit, then a partnership exists.

 

A written partnership agreement is not necessary.

 

And where 2 or more companies come together to carry on business to make a profit then unless they have set up a special purpose joint venture company a partnership will be deemed to exist.

 

However it is important to note that Co-ownership of property alone does not mean that a partnership exists; there must be a sharing of any profits between partners.

Generally the maximum number of partners allowed is 20;however there are exceptions made for solicitors and accountants.

Why is it important to have a written partnership agreement?

 

Because if there is not either an implied or express agreement the partnership will be considered in the eyes of the law a partnership at will and will be governed by an act from 1890….which in most cases is wholly inappropriate for modern business.

 

For example without a written partnership agreement the 1890 Partnership act will mean that

1)there is no right to expel a partner

2)any partner may dissolve the partnership

3)if a partner dies, the firm will automatically dissolve

4)there is no power to retire under the Partnership act.

 

These are pretty crucial reasons for partners to set down their agreement and understanding in a written partnership agreement.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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