We had a look at the Terms of Employment Information Act 1994 (as amended) which gives workers the right to be provided with certain information about their employment in writing. This, as we said, is separate from the concept of a contract of employment itself. Therefore, sometimes when the question is asked, “Do you have a contract of employment?”, the answer given is “no”. However, generally what the person means is that they don’t have anything from their employer in writing under the employer’s obligations in the Terms of Employment Information Act 1994 (as amended).
As the concept of a contract of employment is different to the obligations under this Act, a contract of employment may still exist, just verbally.
So, does a contract of employment have to be in writing?
It is important to recognise that while contracts of employment are generally in writing they do not have to be. You can have a contract of employment which is verbally or orally agreed. Some workers will have contracts of employments which are simple and contained in a letter or small document or are in the form of quite an extensive document containing many pages and various clauses. However, some workers have nothing in writing from their employer, despite having worked in the same place for a number of years.
Do I actually have a contract of employment?
This is a more fundamental question that arises sometimes when workers are taking claims against the person they understand to be their employer and who then turns around and denies the relationship. In most cases it requires the decision or judgment of a body such as the Workplace Relations Commission or the Labour Court to determine this issue. The law distinguishes between what is known as a “Contract of Service” and a “Contract for Service”. Put simply, the “Contract of Service” describes an employee while the “Contract for Service” describes what is known as an independent contractor i.e. someone who works for themselves. The significance of the distinction is that the worker under the “Contract of Service” (an employee) has the protection of employment legislation. However, the worker under a “Contract for Service” (an independent contractor) does not.
The problem is sometimes in distinguishing between both types of employment relationships, particularly when the relationship with the “employer” is of a long duration. However, the courts employ several legal tests to examine the relationship and look at issues such as the intention of the parties when they entered into the relationship, who controls the work, how integrated is the worker into the business, whether the worker is in business for themselves, who pays tax and insurance on behalf of the worker, who provides the worker with equipment and a uniform and other similar criteria surrounding.
As this is a complex question, it is important to contact your union official or the Workers’ Rights Centre for guidance when facing this problem.
When I do receive a written contract of employment, what should be in it?
The contract should set out at a minimum the start and end date of the contract (if there is one), your pay in terms of hourly, monthly or yearly, yours hours of work, your place of work, your holiday and sick leave entitlements, any employment benefits the company may offer and possibly some employment policy procedures such as codes of conduct, disciplinary measures and a dignity at work policy, to name a few. However, these policies may be contained in separate document called an Employment Handbook which can form part of your contract of employment.
Any information contained in your written contract of employment are considered ‘express terms’. However, there are also ‘implied terms’ in a workers contract of employment that may not be written down. The majority of ‘implied terms’ are a workers’ various legal entitlements set out in legislation. Again, it is important to contact your trade union official of the Workers’ Rights Centre should you have queries about contract of employment, written or verbal, express or implied.
“The above information is just a broad outline of the law and should not be used as a legal guide in this complex area. SIPTU provides a specialist individual representation and advice service for members who find themselves in trouble with their employer. The Workers’ Rights Centre can be contacted at 1890 747 881 or through the designated union official.”