New regulations in Ireland on transparent and predictable working conditions
05 January 2023
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 became law on 16 December 2022 without much attention, notwithstanding that it includes some significant obligations on employers which require their immediate attention.
The Regulations transpose EU Directive 2019/1152 on Transparent and Predictable Working Conditions in the European Union. In spite of the fact that many of the Directive’s provisions were already part of the Irish employment law framework, they have a number of important implications for employers/employees around terms and conditions of employment. Employers should review their contractual provisions to ensure that they are compliant. We have set out the key provisions/changes that employers in Ireland should be aware of.
Statement of Terms and Conditions/ Information requirements
While it was originally anticipated that there might be four different information deadlines for an employer to advise employees of various matters regarding their terms and conditions of employment, the Regulations helpfully provide for two information deadlines only – five days and one month.
The “Day 5” statement introduced by the Employment (Miscellaneous Provisions) Act 2018 previously required employers to set out;
- The full names of the employer and employee;
- The address of the employer;
- The expected duration of the contract (if the contract is temporary or fixed-term);
- The rate or method of calculating pay, and the ‘pay reference period’ (i.e. weekly, fortnightly or monthly);
- What the employer reasonably expected the normal length of an employee’s working day and week to be (for example, 8 hours a day, 5 days a week).
This “Day 5” statement must now also include the following:
- Where a probationary period applies, its duration and conditions;
- The place of work or, where there is no fixed or main place of work, confirm that the employee is employed at various places or is free to determine his or her place of work;
- The title, grade, nature or category of work that the employee is employed for, or a brief description of the work;
- The date of commencement of the contract of employment;
- Any terms and conditions relating to hours of work (including overtime).
Note: the last four items on this list were previously required to be provided to employees within two months of commencement of employment. They must now be set out in the “Day 5” statement.
Separately, all other terms of employment required to be given to the employee under the Terms of Employment (Information) Act 1994 are now required to be provided to them within one month of commencement of employment. (It used to be two months).
This “One Month” written statement must set out the following:
- Pay intervals (for example, weekly or monthly);
- Details of any paid leave, including annual leave and public holiday entitlements;
- Details of any sick pay entitlements (bear in mind that three days’ SSP is now payable to employees in Ireland even if there is no scheme operated by the employer);
- Details of any pension and pension schemes;
- The periods of notice to be given by employer or employee;
- Details of any collective agreements that may affect terms of employment.
Additional terms must now also be included as follows:
- The training provided by the employer;
- In the case of a temporary agency worker, the identity of the end-user;
- If the working pattern of the employee is completely (or mostly) unpredictable, an acknowledgement that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours. It should also state the hours and days where the employee may be required to work, and the minimum notice to be given to the employee before the start of a work assignment;
- The identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.
As expected, the Regulations provide that probationary periods cannot exceed 6 months. They can be longer on an exceptional basis, where it would be in the interest of the employee, but no longer than 12 months.
If an employee who commenced employment prior to 16 December 2022 is subject to probation of longer than 6 months and the employee has completed at least 6 months of the probationary period, then it will expire by 1 February 2023, or the date on which the probationary period was due to expire (if earlier).
For a fixed-term contract, the length of any probationary period must be proportionate to the expected duration of the contract and the nature of the work and cannot be included in any renewal of a fixed term contract (for the same function).
Exclusivity of service
An employer can no longer prevent an employee from working for another employer, outside their work schedule, or treat an employee adversely for working for another employer. A restriction on the right to work for another employer is permitted where it’s proportionate, and based on objective grounds. It is referred to as an ‘incompatibility restriction’ and where it is imposed, then details of the restriction, along with the objective grounds on which it’s based, must be included in the in the contract of employment or the written statement provided to the employee.
The only exclusion from this section is to seafarers or sea fishermen.
The Regulations contain a non-exhaustive list of what is meant by ‘objective grounds’ which includes the following:
a. health and safety,
b. the protection of business confidentiality,
c. the integrity of the public service,
d. the avoidance of conflicts of interests,
e. safeguarding productive and safe working conditions,
f. the protection of national security,
g. the protection of critical national infrastructure,
h. the protection of energy security,
i. the administration of vital public service functions,
j. compliance by the employer and the employee with any applicable statutory or regulatory obligations, and
k. compliance by the employee with any professional standards for the time being in force.
There are further grounds specific to the healthcare sector only.
There is a carve out in employments where there’s a collective agreement already dealing with any of the matters covered by the 2022 Regulations (but only for the employees covered by that agreement).
Changes to the Organisation of Working Time Act 1997
To further strengthen the minimum predictability of employees working hours, the provision of our working time legislation that requires employers to notify employees at least 24 hours in advance of their working hours, subject to unforeseen circumstances, has been amended. Now, any work assignment notified to an employee must take place within the reference hours and days notified to the employee as part of their written terms, otherwise the employee is entitled to refuse the work assignment without adverse consequences.
Some of the provisions which are now legally operational may take some employers by surprise, in particular in regard to the operation of probationary periods since 16 December last. We recommend that employers review their contracts of employment in light of the above provisions to ensure that they are amended to comply with the provisions of the Regulations, and that the expiry of any probation period on 1 February 2023 has been caught.