Protection of Employees (Employers' Insolvency) Act , 1984

1. Interpretation.

1.—(1)In this Act—

“the Act of 1967” means the Redundancy Payments Act, 1967;

F1[‘Act of 2015’means the Workplace Relations Act 2015;]

F2[‘the Act of 1969’means theIndustrial Relations Act 1969;]

“the Act of 1973” means the Minimum Notice and Terms of Employment Act, 1973;

“the Act of 1974” means the Anti-Discrimination (Pay) Act, 1974;

“the Act of 1977” means the Unfair Dismissals Act, 1977;

“the Act of 1981” means the Social Welfare (Consolidation) Act, 1981;

F3[‘the Act of 1990’means theIndustrial Relations Act 1990;

‘the Act of 1991’means thePayment of Wages Act 1991;

‘the Act of 1994’means theTerms of Employment (Information) Act 1994;

‘the Act of 1996’means theProtection of Young Persons (Employment) Act 1996;

‘the Act of 1997’means theOrganisation of Working Time Act 1997;

‘the Act of 1998’means the Protections for Persons Reporting Child Abuse Act 1998;

‘the Act of 2001’means theProtection of Employees (Part-Time Work) Act 2001;

‘the Act of 2002’means theCompetition Act 2002;

‘the Act of 2003’means the Protection of Employees (Fixed-Time Work) Act 2003;

‘the Act of 2004’means theIndustrial Relations (Miscellaneous Provisions) Act 2004;]

F4[‘the Act of 2006’means the Employment Permits Act 2006;]

F5[‘Act of 2011’means the Criminal Justice Act 2011;]

“company” means, except when the context otherwise requires, a company within the meaning of section 2 of the Companies Act, 1963, or any other body corporate whether incorporated within or outside the State;

F8['competent authority' means—

(a) the authority referred to in Article 2(1) of the Directive, or

(b) in the case of an employer taken to be, or to have become, insolvent underparagraph (f)ofsubsection (3), an authority that is competent, pursuant to the laws, regulations and administrative procedures of the United Kingdom, to—

(i) appoint a liquidator or a person performing a similar task,

(ii) open collective proceedings based on the insolvency of the employer, or

(iii) establish that the employers undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of such proceedings;]

F8[‘Directive’means Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008^20on the protection of employees in the event of the insolvency of their employer;]

“employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is express or implied, oral or in writing, and whether it is a contract of service or apprenticeship or otherwise, and “employer” and any reference to employment shall be construed accordingly;

“holiday pay” means—

(a)pay in respect of a holiday actually taken; or

(b)any holiday pay which had accrued at the date of the termination of the employee’s employment and which, had his employment with the employer continued until he became entitled to a holiday, would under the employee’s contract of employment in the ordinary course have become payable to him on becoming so entitled;

F3[‘Member State’means a Member State of the European Union]

“the Minister” means the Minister for Labour;

“occupational pension scheme” means any scheme or arrangement which, forming part of a contract of employment, provides or is capable of providing, in relation to employees in any description of employment, benefits (in the form of pensions or otherwise) payable to or in respect of any such employees on the termination of their employment or on their death or retirement;

F8['relevant officer' means—

(a) where the employer is insolvent in the State and the employees concerned are employed or habitually employed in the State, an executor, an administrator, the official assignee or a trustee in bankruptcy, a liquidator, a receiver or manager, a trustee under an arrangement between an employer and his creditors or under a trust deed for his creditors executed by an employer,

(b) where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of the Directive, and the employees concerned are employed or habitually employed in the State, the person appointed by the appropriate competent authority to perform the functions of a relevant officer, or

(c) where the employer is insolvent under the laws, regulations and administrative procedures of the United Kingdom, and the employees concerned are employed or habitually employed in the State, the person appointed by the appropriate competent authority to perform the functions of a relevant officer;]

F9[‘the Social Insurance Fund’means the Social Insurance Fund established undersection 39of theSocial Welfare Act, 1952, and continued in being undersection 122of theSocial Welfare (Consolidation) Act, 1981;]

“the Tribunal” means the Employment Appeals Tribunal.

F8[‘United Kingdom’includes a territory or other place for whose external relations the United Kingdom is responsible and in which the law of the European Union applied while the United Kingdom was a Member State;]

(2)Any reference in this Act to the assets of an occupational pensions scheme is a reference to the funds or other property out of which the benefits provided by the scheme are payable from time to time, including the proceeds of any policy of insurance taken out, or contract entered into, for the purposes of the scheme.

(3)For the purposes of this Act, an employer shall be taken to be or, as may be appropriate, to have become insolvent if, but only if,

(a)he has been adjudicated bankrupt or has filed a petition for or has executed a deed of, arrangement (within the meaning of section 4 of the Deeds of Arrangement Act, 1887); or

(b)he has died and his estate, being insolvent, is being administered in accordance with the rules set out in Part I of the First Schedule to the Succession Act, 1965; or

(c)where the employer is a company, a winding up order is made or a resolution for voluntary winding up is passed with respect to it, or a receiver or manager of its undertaking is duly appointed, or possession is taken, by or on behalf of the holders of any debentures secured by any floating charge, of any property of the company F10[comprised in or subject to the charge; or]

(d)he is an employer of a class or description specified in regulations under section 4 (2) of this Act which are for the time being in force and the circumstances specified in the regulations as regards employers of such class or description obtain F10[in relation to him; or]

F12[(e)the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of the Directive, and the employees concerned are employed or habitually employed in the State; or]

F13[(f)the employer is insolvent under the laws, regulations and administrative procedures of the United Kingdom and the employees concerned are employed or habitually employed in the State.]

2. Redundancy and Employers’ Insolvency Fund.

2.—F14[…]

3. Application of Act.

F15[3.—Subject to section 11 of this Act, this Act applies to employees employed in employment which is insurable for all benefits underthe Social Welfare (Consolidation) Act 1993or would be so insurable but for the fact that-

(a) the employment concerned is an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to theSocial Welfare (Consolidation) Act 1993, or

(b) the employees concerned have attained the age of 66 years.]

4. Insolvency for the purposes of Act.

4.—(1)An employer who is for the purposes of this Act insolvent shall for such purposes be regarded as having become insolvent on—

(a)where the employer has been adjudicated bankrupt, the date of such adjudication,

(b)where the employer petitioned for arrangement, the date on which the petition is filed,

(c)where the employer executed a deed referred to in section 1(3) (a) of this Act, the date of such execution,

(d)where the employer has died, the date of his death,

(e)where the employer is a company within the meaning of section 2 of the Companies Act, 1963—

(i)in case either a receiver is appointed on behalf of the holder of any debenture secured by a floating charge, or possession is taken by or on behalf of such a debenture holder of any property of the company comprised in or subject to the charge, the date of the appointment of the receiver or possession being taken as aforesaid, as may be appropriate, or

(ii)in any other case the date which, in relation to the company, is the relevant date within the meaning of section 285 of the Companies Act, 1963, F16[…]

(f)where the employer is an employer of a class or description specified in regulations under subsection (3) of this section which are for the time being in force, the day on which under the regulations such an employer is for such purposes to be regarded as F17[having become insolvent,]

F18[ (g)where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of the Directive, and the employees concerned are employed or habitually employed in the State, the date on which the insolvency was established under the laws, regulations and administrative procedures of that other Member State, and]

F19[(h)where the employer is insolvent under the laws, regulations and administrative procedures of the United Kingdom and the employees concerned are employed or habitually employed in the State, the date on which the insolvency was established under the laws, regulations and administrative procedures of the United Kingdom.]

(2)The Minister may by regulations specify the circumstances in which employers who are of a class or description specified in the regulations are, for the purposes of this Act, to be taken to be, or to have become, insolvent.

(3)The Minister may by regulations specify the day on which any employer who is of a class or description specified in the regulations and who is also an employer who for the purposes of this Act is insolvent, is to be regarded as having become so insolvent.

5. Appointment in certain circumstances of persons to perform functions assigned by Act to relevant officers.

5.—(1)Where—

(a)by virtue of section 1 (3) (d) of this Act, an employer becomes insolvent for the purposes of this Act, or

(b)an employer otherwise becomes insolvent for such purposes and there is not for the time being in relation to the insolvency a relevant officer,

the Minister may appoint as regards such insolvency a person under this subsection.

(2)Where the Minister makes an appointment under this section the following provisions shall apply:

(a)the functions assigned by this Act to a relevant officer shall, as regards the employer concerned, be performed by, and only by, the person to whom the appointment relates, or, if through illness or because his appointment is revoked or for any other reason the person so appointed is unable to perform such functions, another person so appointed, and

(b)for so long as the appointment remains in force, each of the references to a relevant officer in sections 6, 7 and 8 of this Act shall be construed as including a reference to the person to whom the appointment relates.

6. 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 F20[the Social Insurance 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,

F21[(iii)at the election of the employee, either—

(I) 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 that employer to give the notice required by the said section 4, or

(II) any unpaid normal weekly remuneration certified by the relevant officer as being the amount of normal weekly remuneration due to the employee in lieu of the statutory notice prescribed in section 4 of the Act of 1973,]

(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,

F22[(v)any amount which an employer is required to pay by virtue of—

(I)a determination under section 8 (1) or 9 (1) or an order under section 10 (2) of the 1977 Act, or

F23[(II) a decision, determination or order under Part V of theMaternity Protection Act, 1994, Part IV of the Parental Leave Act, 1998, or Part 4 of the Carer’s Leave Act, 2001,]]

(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, F24[or

(III) which an employer is required to pay by virtue of a decision, determination or order of a court falling within section 103(3) of the Employment Equality Act, 1998,]

(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, F25[…]

(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 F26[Employment Equality Act, 1977,]

F27[(xii)any amount which an employer is required to pay by virtue of the National Minimum Wage Act, 2000, being an amount by reference to which proceedings have been instituted against the employer for an offence undersection 35of the National Minimum Wage Act, 2000, and]

F27[(xiii)any amount which an employer is required to pay by virtue of—

(I) a decision of a rights commissioner undersection 26of the National Minimum Wage Act, 2000, or

(II) a determination of the Labour Court undersection 29of the National Minimum Wage Act, 2000,

and made, in any case, not earlier than the commencementF28[of the relevant period,]]

F29[(xiv)any amount which an employer is required to pay by virtue of a decision by way of order by a rights commissioner under section 6(2) of the Act of 1991 or a determination by the Employment Appeals Tribunal under section 7(1) of the Act of 1991 and made, in any case, not earlier than the commencement of the relevant period, provided that a claim in respect of the amount to which the decision or determination refers has not been made under another provision of this section,

(xv)any amount which an employer is required to pay by virtue of a recommendation by way of order by a rights commissioner under section 7(2)(d) of the Act of 1994 or a determination by the Employment Appeals Tribunal under section 8(1) or section 8(6)(a) of the Act of 1994 and made, in any case, not earlier than the commencement of the relevant period,

(xvi)any amount which an employer is required to pay by virtue of a recommendation by a rights commissioner under section 18(2) of the Act of 1996 or a determination by the Employment Appeals Tribunal under subsection (1) or (6) of section 19 of the Act of 1996 and made, in any case,not earlier than the commencement of the relevant period,

(xvii)any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 27(2) of the Act of 1997 or a determination by the Labour Court under subsection (1) or (8) of section 28 of the Act of 1997 and made, in any case, not earlier than the commencement of the relevant period,

(xviii)any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 4(4) of the Act of 1998 or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by section 4(6)(b) of the Act of 1998 and made, in any case, not earlier than the commencement of the relevant period,