Protection of Employees (Employers' Insolvency) Act, 1984
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Employees' rights on insolvency of employer. |
6.—(1) If, on an application made to him in the prescribed form by or on behalf of an individual, the Minister is satisfied that— | |
(a) the person by or on whose behalf the application is made (which person is in this section subsequently referred to as “the applicant”) is a person to whom this Act applies, and that he was employed by an employer who has become insolvent, and | ||
(b) the date on which the employer became insolvent is a day not earlier than the 22nd day of October, 1983, and | ||
(c) on the relevant date the applicant was entitled to be paid the whole or part of any debt to which this section applies, | ||
the Minister shall, subject to this section, pay to or in respect of the applicant out of the Redundancy and Employers' Insolvency Fund the amount which, in the opinion of the Minister, is or was due to the applicant in respect of that debt. | ||
(2) (a) Subject to paragraph (b) of this subsection, the following are debts to which this section applies— | ||
(i) any arrears of normal weekly remuneration in respect of a period, or of periods in the aggregate, not exceeding eight weeks, and to which the applicant became entitled during the relevant period, | ||
(ii) any arrears due, in respect of a period or periods not exceeding eight weeks in all under a scheme or arrangement which, forming part of an employee's contract of employment, provides or is capable of providing in relation to employees in any description of employment, payments payable to any such employees in respect of periods during which they are unable to fulfil their contract of employment due to ill health and to which the applicant became entitled during the relevant period, | ||
(iii) any amount which an employer is required to pay, by virtue of an award under section 12 of the Act of 1973 made not earlier than the commencement of the relevant period, either for the period of notice required by section 4 of the Act of 1973 or by reason of a failure by him to give the period of notice required by the said section 4, | ||
(iv) any holiday pay in respect of a period or periods of holiday not exceeding eight weeks in all, and to which the applicant became entitled during the relevant period, | ||
(v) any amount which an employer is required to pay by virtue of a determination under section 8 (1) or 9 (1) or an order under section 10 (2) of the Act of 1977 and made, in any case, not earlier than the commencement of the relevant period, | ||
(vi) any amount to which a recommendation under section 8 (1) of the Act of 1977 relates, being a recommendation which was made not earlier than the commencement of the relevant period, | ||
(vii) any amount which an employer is required to pay by virtue of an employment regulation order within the meaning of Part IV of the Industrial Relations Act, 1946 , being an amount by reference to which proceedings have been instituted against the employer for an offence under section 45 (1) of that Act, | ||
(viii) any amount— | ||
(I) specified in a recommendation issued under section 7 (3) of the Act of 1974, or section 19 (3) of the Employment Equality Act, 1977 , | ||
(II) which an employer is required to pay by virtue of a decision or determination of an appeal by the Labour Court under subsection (1) of section 8 of the Act of 1974 or subsection (2) of section 21 of the Employment Equality Act, 1977 or, where appropriate, a decision of the High Court given by virtue of either subsection (3) of the said section 8 or subsection (4) of the said section 21, | ||
(ix) damages awarded under section 24 (3) (a) of the Employment Equality Act, 1977 , | ||
(x) a fine imposed under section 8 (4) (c) (i) or paragraph (a) (inserted by section 30 of the Employment Equality Act, 1977 ) of section 9 (3) of the Act of 1974 or under section 25 (3) (a) (iii) or 26 (3) (a) (iii) of the Employment Equality Act, 1977 , and | ||
(xi) compensation directed to be paid under section 10 (1) (d) (inserted by section 31 of the Employment Equality Act, 1977 ) or section 10 (3) (a) (inserted by the said section 31) of the Act of 1974 or under section 26 (1) (d) (iii) of the Employment Equality Act, 1977 . | ||
(b) Any amount, damages, fine or compensation referred to in subparagraph (viii), (ix), (x) of paragraph (a) of this subsection shall be regarded as being a debt to which this section applies if, and only if, the relevant recommendation, decision, determination, award or order was made during, or after the expiration of, the relevant period. | ||
(3) Where— | ||
(a) legal proceedings are instituted by or on behalf of an employee and on foot of all or any of the following— | ||
(i) a claim for arrears described in subparagraph (i) or (ii) of subsection (2) of this section, | ||
(ii) a claim for holiday pay described in subparagraph (iv) of the said subsection (2), | ||
(iii) a claim for damages at common law for wrongful dismissal, | ||
an award is made by the court in favour of the employee, and | ||
(b) had the employee made an application under subsection (1) of this section in respect of any of the matters referred to in subparagraph (i), (ii) or (iii) of paragraph (a) of this subsection he would have satisfied the requirements of paragraphs (a), (b) and (c) of the said subsection (1), | ||
subject to subsection (4) (a) of this section, there shall be paid out of the Redundancy and Employers' Insolvency Fund, to or in respect of the employee, an amount equal to— | ||
(i) the amount of the award, or | ||
(ii) the maximum which would have been payable out of the said Fund by virtue of this Act had the employee successfully sought redress under section 8 (1) or 9 (1) of the Act of 1977. | ||
(4) (a) The amount payable to an employee in respect of any debt mentioned in subsection (2) or award mentioned in subsection (3) of this section shall, where the amount of that debt is or may be calculated by reference to the employee's remuneration, not exceed £211.54 in respect of any one week or, in respect of any period of less than a week, an amount bearing the same proportion to £211.54 as that period bears to the normal weekly working hours of the employee at the relevant date. | ||
(b) An amount payable under this section in respect of a debt mentioned in subsection (2) (a) (ii) of this section as regards a particular period, shall not exceed the difference between the amount of any disability benefit or injury benefit payable under the Act of 1981 to the employee concerned as regards the period (together with, in either case, the amount of any pay-related benefit payable to such employee under the Act of 1981 as regards the period) and the amount of his normal weekly remuneration as regards the period. | ||
(c) (i) A payment shall not be made under this section in respect of an amount which an employer is required to pay by virtue of a determination having been made under section 8 (1) or 9 (1) of the Act of 1977, unless— | ||
(I) if proceedings are instituted under section 10 of the Act of 1977, the proceedings are withdrawn, or | ||
(II) in case an appeal is brought under section 10 (4) of the Act of 1977 from the determination, the appeal has been either withdrawn or determined, or | ||
(III) in case there is no such appeal, the time for bringing such an appeal has expired. | ||
(ii) A payment shall not be made under this section in respect of an amount to which a recommendation under section 8 (1) of the Act of 1977 relates unless— | ||
(I) in case an appeal from the recommendation is brought under section 9 (1) of the Act of 1977, the appeal is withdrawn, or | ||
(II) in case there is no such appeal, the time for bringing such an appeal has expired. | ||
(iii) A payment shall not be made under this section as regards a recommendation referred to in subsection (2) (a) (viii) (I) of this section unless— | ||
(I) in case an appeal is brought under section 8 (1) (a) of the Anti-Discrimination (Pay) Act, 1974 , or section 21 (1) of the Employment Equality Act, 1977 , against the recommendation, the appeal is withdrawn, or | ||
(II) in case there is no such appeal, the time for bringing such an appeal has expired. | ||
(5) The provisions of subsections (6) and (7) of this section shall apply in a case where a relevant officer is either appointed or required to be appointed. | ||
(6) Subject to subsection (7) of this section, the Minister shall not in a case which is a case referred to in subsection (5) of this section make any payment under this section in respect of any debt until he has received a statement in the prescribed form from the relevant officer of the amount of that debt which appears to have been owed to the employee on the relevant date and to remain unpaid; and the relevant officer shall, on a request being made in that behalf, by the Minister, provide him, as soon as is reasonably practicable, with such a statement. | ||
(7) Where— | ||
(a) a period of six months has elapsed since the application for a payment under this section was received by the Minister, but no such payment has been made, | ||
(b) the Minister is satisfied that a payment under this section should be made, and | ||
(c) it appears to the Minister that there is likely to be further delay before he receives a statement referred to in subsection (6) of this section regarding the debt in question, | ||
then, the Minister may, if the applicant so requests, or if the Minister thinks fit, without such a request, make a payment under this section notwithstanding the fact that no such statement has been received. | ||
(8) Where an application is made to the Minister under this section and in relation to any or each of the debts to which the application relates, the Minister is satisfied that— | ||
(a) there was an agreement between the applicant and the employer concerned that the whole or any part of the debt would be the subject of an application under this section, and | ||
(b) when the agreement was made such employer had the means to pay such debt or the part thereof, | ||
the Minister may either refuse the application or disallow it in so far as it relates to such debt or part. | ||
(9) In this section— | ||
“normal weekly remuneration” has the meaning assigned to it by Schedule 3 to the Act of 1967 for the purposes of that Schedule save that any reference in that Schedule to the date on which an employee was declared redundant may, where appropriate, be construed as including a reference to the relevant date; | ||
“the relevant date” means— | ||
(a) in relation to a debt which is an amount, damages, fine or compensation referred to in subparagraph (iii), (v), (vi), (viii), (ix), (x) or (xi) of subsection (2) (a) of this section, the date on which the relevant employer became insolvent or the date on which the relevant recommendation, decision, determination, award or order is made, whichever is the later, | ||
(b) in relation to any other debt to which this section applies— | ||
(i) in case the relevant applicant's employment is terminated as a result of the relevant employer's insolvency, the date on which such employer became insolvent, or the date of such termination, whichever such applicant shall as regards the debt nominate, or | ||
(ii) in any other case, the date on which such employer became insolvent; | ||
“the relevant period” means in relation to a debt to which this section applies, the period of eighteen months immediately preceding the relevant date. | ||
(10) No reference in subsection (3) of this section to an award shall be construed as including a reference to any amount allowed as regards costs. |