A frequent question we are asked is what happens if we operate in one jurisdiction but the employee lives and works in another jurisdiction. Under what legislation would they be entitled to raise an employment dispute?
Many Companies in Ireland also have operations in Northern Ireland, and vice versa and when dealing with employees in different jurisdictions there can be confusion over entitlements such as public holidays, sick pay and family friendly entitlements such as Paternity leave (availability in Northern Ireland) or Force Majeure Leave (available in the Republic of Ireland). So how does a Company deal with such requests?
Contract of Employment
Firstly a contract of employment should clearly identify what jurisdiction the employee will operate under. Major considerations in this relate to the currency the employee will be paid in and also their entitlement to public holidays, will they operate under the host country or the Company standard.
EU Regulations
The next consideration to be mindful of is that where an employer and employee have not chosen the laws a contract will be governed under, in accordance with Article 6 of the Rome Convention an employee may not be deprived of the protection afforded to them by the mandatory rules of the law of the country in which they habitually carry out their work, or if they carry out their work in more than one place then the law of the country in which their place of business is situated.
This also backed up by Section 5 of the Brussels One Regulation which permits an employee to bring a claim against their employer where;
- they habitually carry out their work; or
- where the employer is domiciled.
The result of this being that an employee who lives and works in Northern Ireland, but for a Republic of Ireland Company can utilise the legislation in Northern Ireland as they habitually work their but they could also take a claim in the Republic of Ireland as the employer is domiciled here.
if there is a dispute about where the employee lives in one jurisdiction and works in another it will be dealt with firstly by seeing if the employee carries out their work in the same jurisdiction as where the employer is based, in this case this is the jurisdiction that will be used and where the employee lives will not be taken into account, however where an employee routinely works in more than jurisdiction the courts will look at which jurisdiction would constitute the center of their working activities.
Key Learnings
The key learning points for an employer to take from this is that by having a clear statement in the employment contract of an employee who works between jurisdictions can resolve a number of issues from an early stage. The contract will give a clear idea of where the employee will be based and where they will operate the majority of their work. Otherwise it could result in an employee having the ability to take a claim in either of the jurisdictions that they wish, and can lead to a large headache for an employer.
