1. Introduction
A persistent failure to provide a written statement of terms gives rise to a continuing contravention of the Terms of Employment (Information) Act 1994. This affects the calculation of the cognisable period for complaints and may extend the period for which compensation is available.
In Ryan v Smart School Accounting Ltd the WRC examined the continuing contravention principle and its application to the cognisable period. This article considers the decision and the wider principles.
2. Legislation and Case Law
Section 41(6) of the Workplace Relations Act 2015 requires complaints to be presented within six months of the contravention. Where the contravention is continuing, the six-month period runs from the cessation of the contravention.
In Quigley v Complex Tooling and Moulding Ltd [2009] 1 IR 349, the High Court (Charleton J.) confirmed the doctrine of continuing contravention in employment law: where the contravention is of a continuing nature, the limitation period does not begin until the contravention ceases.
The Labour Court in An Employer v An Employee EDA1827 applied the continuing contravention doctrine to a failure to provide a written statement, holding that the breach continued for as long as the failure persisted.
Section 7 of the 1994 Act provides for compensation of up to four weeks’ remuneration. The continuing contravention does not extend the cap on compensation but ensures that a complaint can be brought during the employment notwithstanding that the breach commenced more than six months earlier.
3. Decision
The WRC in Ryan applied the continuing contravention doctrine to find that the employer’s failure to provide a written statement was a single continuing breach, with the six-month limitation period running from the cessation of the breach.
Compensation was awarded under Section 7 of the Act, with the maximum four-week award reflecting both the duration of the breach and the absence of any documentation provided to the employee.
The decision confirms that an employer cannot rely on the passage of time to defeat a 1994 Act complaint where the breach has continued throughout the employment.
4. Takeaway
Employers should audit their employee files to identify any staff who do not have written statements on record. The Section 7 exposure for long-serving employees with no documentation can be significant.
Employees who have never received a written statement may bring a complaint at any time during the employment without concern about the six-month limit, by reason of the continuing contravention doctrine.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
