When employee is asked not to come to work as the employer is unable to provide work for you, does not have sufficient work for everybody or is temporarily closing down or is forced to close for a period of time, such a period is called a lay-off.
Employer is allowed to lay-off employee according to the Redundancy Payments Acts 1967–2014. The regulation however provides that the believe must be that this is a temporary situation and you must be notified of the lay-off before work finishes.
There may be situation that some work is still available but there is not sufficient work to keep you full time or to keep providing you with work for the same amount as it used to be. That is known as short-time. A short-time situation arises where, due to a reduction in the amount of work to be done, your weekly pay is less than half your normal weekly pay or your hours worked are reduced to less than half the normal weekly working hours. This must be also a temporary situation and your employer must notify you before the reduction starts.
How it works
Your employer should explain to you the reason for lay off or short-time and keep you informed of the situation during this time. The best way to notify you is to use special form called RP9. If you are not properly notified you may be entitled to claim statutory redundancy form your employer.
Lay-off or short time is very often mentioned in your contract of employment or (even if not mentioned in your contract or where there is no contract of employment in writing) it may be a custom and practice in your workplace (it means employees were put on lay off or short-time in the past). Unfortunately, it is unpaid leave. You can apply for jobseeker’s benefit or jobseeker’s allowance.
Where you properly selected for lay off or short-time?
When selecting employees for lay off or short-time working your employer should apply the same standard of selection criteria as for redundancy. The criteria should be reasonable and applied in a fair manner. For example, the custom and practice in the workplace may be last in, first out or the contract of employment may set out criteria for selection. Under employment equality legislation, the selection must not discriminate against employees on any of the following 9 grounds: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.
If you believe you were not fairly selected and someone else should have been selected due to their shorter length of service with your employer or less skills (apply formula: I can do everything he can do, but he/she cannot do everything I am capable of) please notify that to your employer in writing and ask for rectification. You may be entitled in the future to claim unfair dismissal based or wrong selection for redundancy.
Please note to be careful to exercise that right as COVID-19 created very uncertain times for everybody. You should seek, where possible, legal advice.
If a lay-off or a short-time situation exists and has continued for 4 weeks or more, or for 6 weeks in the last 13 weeks, you may give your employer a notice in writing of your intention to claim redundancy under the Redundancy Payments Acts 1967-2014. If the period of lay-off or redundancy has ended, you must do this within 4 weeks.
Unless your employer gives you a counter-notice within 7 days of your notice, you may be entitled to a redundancy payment provided that you qualify for redundancy. If your employer gives you a counter-notice within the allotted time, it must be to the effect that within 4 weeks of the date of your claim for redundancy, it will be possible to offer you not less than 13 weeks’ work without lay off or short time.
You should note that if you claim redundancy in this way you are considered to have left your job voluntarily and therefore you will lose any right to notice from your employer under the Minimum Notice and Terms of Employment Acts 1973-2005. However if you have been laid off and you are subsequently made redundant by your employer you do not lose your notice entitlements.
Duration of lay off or short time
If you do not wish to claim redundancy but the lay-off or short-time situation continues, the question arises as to whether it is a temporary situation. If it becomes apparent that it is no longer temporary then the situation is now a redundancy rather than a lay-off or short-time working. It is the employer who initially decides whether or not there is a redundancy situation. If there is a dispute about this it should be referred to the Workplace Relations Commission to make a decision. Again, be careful and seek legal advice as it may be different what is “temporary situation” in the times of COVID-19.
In the case of workers who have been laid off for an average period of more than 12 weeks during the 4 years prior to redundancy, the provisions relating to lay off above will not apply until the end of that average period. If you are a seasonal worker, therefore, there will normally be no question of redundancy until the usual commencement time of your seasonal work. If you are not then re-employed, the question of redundancy arises, but not until then.