Ireland: A Guide To The Employment (Miscellaneous Provisions) Act 2018

Last Updated: 16 April 2019
Article by Jennifer Cashman

Introduction

Minister Regina Doherty has described the Employment (Miscellaneous Provisions) Act 2018 ('the Act ') as "one of the most significant pieces of employment legislation for a generation". Whilst that may be overstating the impact of the Act somewhat, it certainly heralds a new era for employers in sectors where the use of casual work is an integral part of their business model. In this Insight, we will go through the main provisions of the Act and provide some practical advice for employers and HR practitioners on how to deal with the new legal obligations arising.

Summary

Essentially, the Act, which came into effect on 4 March last, addresses five areas as follows;

  1. Power of WRC Adjudicators to subpoena witnesses or documents.
  2. Core terms of employment - the Act places an obligation on employers to furnish five core terms of employment to all employees, within five days of commencement of employment. Failure to comply with this obligation is a criminal offence under the Act.
  3. Zero hours contracts - the Act prohibits the use of zero hours contracts except in certain circumstances which will be outlined further below.
  4. Minimum payments - the Act provides for minimum payments to employees on low hours contracts who work less than the hours provided for in the contract.
  5. Banded hours - the Act provides for banded hours contracts to be provided to employees whose actual hours of work are not reflected in their existing contract.

We will now review each of these 5 areas in more detail.

1. Power of WRC Adjudicators to subpoena witnesses or documents

The Act has amended the Unfair Dismissals Acts to address an issue that was omitted from the Workplace Relations Act, 2015. In that regard, the Act provides that a WRC Adjudicator can give notice in writing for any person to attend and give evidence at a WRC hearing or to produce any documents in the person's possession, custody or control which relate to the proceedings. The same immunities and privileges will apply as if the person was a witness before the High Court. Failure/refusal to comply with the written notice from the WRC Adjudicator to give evidence and/or to produce documents shall be an offence.

This power is not new insofar as, prior to the introduction of the WRC, the EAT and the Equality Tribunal always had the power to subpoena witnesses and documents. However, when the new WRC system was established and commenced in 2015, this issue was overlooked in the drafting of the Workplace Relations Act, 2015, and therefore the opportunity was taken in this legislation to address that omission.

Where any HR practitioner or business owner receives a subpoena of this nature from a WRC Adjudicator, it should not be ignored and legal advice should be taken on the obligations arising. It will be interesting to see how matters develop with regard to the WRC in circumstances where the Supreme Court has recently given leave for a constitutional challenge to the WRC to proceed. Should this challenge be successful, and should the WRC consequently be deemed unconstitutional, then it may be that all employment claims will be required to be dealt with by the Courts. Watch this space!

2. Statement of 5 Core Terms

Employers are now obliged to provide employees with a Statement of five core terms in writing within 5 calendar days (not business days) of an employee commencing employment. Section 7 of the Act lists these core terms as follows;

  1. Names of employer and employee;
  2. Address of the employer;
  3. Expected duration of employment if a temporary contract or end date if a fixed term contract;
  4. Rate or method of calculation of pay and pay reference period for purposes of the National Minimum Wage Act, 2000, and;
  5. Number of hours which the employer reasonably expects the employee to work.

In relation to number 5 above, the number of hours, the Act does not define "reasonably expects'. It is likely in this regard that an employer will be in compliance with the Act if it provides such information as it is able to determine from the outset of the employment relationship. For employers who work off weekly rotas, our view is that it would be sufficient to state that the employee would be required to work such hours per day and such hours per week as would be determined by the employer on a week to week basis by the provision of a rota, which would be furnished to the employee in advance.

It is important for employers to note that this obligation to provide the five core terms supplements, as opposed to replaces, the existing obligations to provide employees with a Statement of Main Terms and Conditions of Employment, as set out in the Terms of Employment (Information) Act, 1994. Under that legislation, an employer must provide a written statement to an employee outlining fifteen core terms of employment, within 2 months of the commencement of the employee's contract of employment.

From a practical perspective, it makes sense for employers to consolidate the five core terms under the Act and the fifteen terms under the 1994 legislation and send the one document to employees within 5 days of commencement of employment. Ideally, a full contract of employment should be sent to employees in advance of them commencing employment.

Often, hiring managers fail to inform HR that a new hire is commencing with the business, particularly in times of full employment, as we have now, where there is pressure to get resources in quickly. As a result, sometimes HR do not hear about a new hire until the new recruit has their feet firmly under the desk!

It is very important in this regard that internal communication about new hires and start dates is very streamlined to ensure that employers do not inadvertently fail to meet their legal obligations, particularly in circumstances where failure to provide the five core terms under the Act is a criminal offence.

In that regard, an employer who fails to provide an employee with the required statement of five core terms, within one month of the commencement of the employee's employment, shall be guilty of an offence under the Act. An employer who deliberately provides false or misleading information or who is reckless as to whether or not such information is provided will also be guilty of an offence. Employers found guilty of such an offence shall be liable on summary conviction to a fine of up to €5000 or imprisonment for a term not exceeding 12 months or both.

The Act provides a defence whereby an error or omission regarded as a clerical mistake or made accidentally and in good faith is not a breach.

The Act also provides anti-penalisation provisions for employees who invoke their rights (existing or new) under the 1994 Act. Penalisation in this regard include suspension, layoff, dismissal, demotion, danger to terms and conditions, discipline, coercion and intimidation.

3. Zero Hours Contracts

The Act prohibits zero hours contracts, save in limited circumstances. In that regard, the Act inserts a new section 18 into the Organisation of Working Time Act 1997 and the effect of section 18 is to prohibit the use of zero hours contracts. The new section 18 describes three types of contracts as follows;

i. A contract which specifies a certain number of working hours;

ii. An "as and when required" contract where there is mutuality of obligation; or

iii. A combination of the above two contract types.

The Act sets out that the prohibition on the use of zero hours contracts does not apply to work of a casual nature. The Act does not define work of a casual nature and we will address that further below.

Furthermore, the Act sets out that, in contracts requiring a certain number of hours, the number shall be greater than zero, unless the work is done in emergency circumstances or the work consists of short-term relief work to cover routine absences for that employer. In our experience, the use of zero hours contracts was not widespread amongst employers in any event and therefore this aspect of the Act should not have a significant impact on employers.

4. Minimum Payments

The Act goes on to provide that an employee is entitled to a minimum payment in the following circumstances;

A. Where they have a certain number of hours contract and they do not do at least 25% of their contracted hours, or;

B. Where they have an "as and when required' contract, or a mix of a certain hours contract and an "as and when required" contract, and the employee does not do at least 25% of the hours done for that employer by other employees in the same role that week.

In either A or B above, the minimum payments will be calculated as follows;

i. if the employee was not required to work at all, the pay is the lesser of either 25% of the hours (contract or whatever was done by another employee) or 15 hours;

ii. if the employee was required to work, but did not work 25% of hours or at least 15 hours, they are entitled to 25% of their contracted hours or the hours done by another employee doing the same job.

This provision is not new as this is already provided for in the Organisation of Working Time Act, 1997. However, what is new is that the Act provides for a new minimum payment which is calculated at a rate of three times the national minimum hourly rate, which is currently €9.80, or three times any ERO rate which is in place.

There is some confusion among practitioners as to whether the minimum payment is:

(a) The normal hourly rate for pay for each of the guaranteed hours, subject to a minimum payment of three hours (that is, a minimum payment of €29.40 – three hours x €9.80, which is the current minimum wage), or

(b) Whether the guaranteed hours are calculated using an hourly rate of three times the national minimum wage, which for an employee entitled to 15 hours would equate to a payment of €441.00 for the week (that is, 15 x [€9.80 x 3]).

Only time will tell as to how the WRC and courts will interpret the Act. If the latter interpretation is correct, then it means that employers will be required to pay at least €29.40 per guaranteed hour.

These minimum payment obligations do not apply in the following circumstances:

  • Emergencies;
  • exceptional circumstances (unforeseen);
  • layoff/short time;
  • genuinely casual work;
  • if the employee is not available to work (for example, due to illness); or
  • where an employee is on call-for emergencies or events which may not occur.

5. Banded Hours Contracts

Banded hours contracts will arise where an employee's contract of employment does not reflect the actual number of hours worked by the employee over a reference period of 12 months, between the date of commencement of employment and the date on which the employee requests to be put in a band of hours.

The Act also provides that a continuous period of employment with the employer, which occurs immediately before the legislation was enacted, will be reckonable towards the 12 month reference period. An employee must request a banded hours contract in writing and the employer must then place the employee on the appropriate band no later than four weeks after the request is made.

The employer determines the appropriate band on the basis of the average number of hours worked by the employee per week during the reference period. The bands are set out in a table in the act as follows;

Band From To
A 3 hours 6 hours
B 6 hours 11 hours
C 11 hours 16 hours
D 16 hours 21 hours
E 21 hours 26 hours
F 26 hours 31 hours
G 31 hours 36 hours
H 36 hours +

The advantage for the employee requesting a banded hours contract, and receiving one, is that they then then a guaranteed average number of working hours within a band for at least a 12 month period.

The Act provides that an employer may refuse the employee's request to be placed on a band of hours in the following circumstances;

  • Where there is no evidence to support the request, or;
  • Where there have been significant adverse changes to the employer's business within or after the reference period, or;
  • Where the average hours worked by the employee were affected by a temporary situation which no longer exists.

The Act also provides that this section of the Act does not apply to banded hours arrangements entered into by agreement following collective bargaining.

The Act also provides there is no requirement on an employer to provide hours of work in a week if the employee was not expected to work and/or the employer is closed and no business is being carried out.

An employee can bring a complaint to the WRC, which can in turn issue a decision placing the employee in an appropriate band of hours, but the WRC cannot award compensation on foot of that claim.

The existing penalisation clause in the Organisation of Working Time legislation is also strengthened by the new Act. Penalisation is prohibited where the employee is doing any of the following;

  • Invoking rights available to them under the legislation;
  • Giving evidence in proceedings under the legislation;
  • Threatening to take action under the legislation;
  • Opposing an unlawful act of the employer.

There is a presumption in any penalisation claim that the employee acted in good faith.

It is also important to note that an employee is not permitted to recover for penalisation under the Organisation of Working Time legislation and the Unfair Dismissals Acts.

Casual Workers

As outlined above, no definition has been provided for "work of a casual nature" in the Act and the Department has stated that it will be a matter for the WRC and the Labour Court to determine on a case-by-case basis whether something is genuinely casual or not. As the WRC and the Labour Court have not had an opportunity as yet to interpret what will be considered to be "genuinely casual" under the Act, it is difficult to advise definitively at the moment that any purported casual arrangement will be upheld as being casual. Many commentators have noted that, in the absence of mutuality of obligation, the work will be considered to be "genuinely casual". However, the UK's Employment Appeals Tribunal ("the EAT") has examined the employment status of casual workers on many occasions and, in one case, highlighted that, even within casual working arrangements, an individual may be considered to be effectively entering into a separate contract of employment on each occasion that an assignment is accepted and in such cases, there may be sufficient mutuality of obligation between the parties to deem the relationship more than casual.

While it remains to be seen how "genuinely casual" will be interpreted by Irish fora, it is likely that they too will be influenced by the mutuality of obligation test. It is important therefore to ensure that, should a casual employee have the option to turn down work, they do not suffer any negative repercussions, for example, by moving to the end of the list or missing a subsequent opportunity to be called up.

Conclusion

The Employment Team in RDJ will be happy to assist you with any of your legal requirements to ensure that you are acting in full compliance with changes brought about by the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions