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;
1. The full names of the employer and employee
2. The address of the employer
3. The expected duration of the contract (if the contract is
temporary or fixed-term)
4. The rate or method of calculating pay, and the 'pay
reference period' (i.e. weekly, fortnightly or monthly)
5. 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:
6. Where a probationary period applies, its duration and
conditions.
7. 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;
8. The title, grade, nature or category of work that the employee
is employed for, or a brief description of the work;
9. The date of commencement of the contract of employment;
10. 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:
1. Pay intervals (for example, weekly or monthly).
2. Details of any paid leave, including annual leave and public
holiday entitlements.
3. 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).
4. Details of any pension and pension schemes.
5. The periods of notice to be given by employer or employee.
6. Details of any collective agreements that may affect terms of
employment.
Additional terms must now also be included as follows:
7. The training provided by the employer;
8. In the case of a temporary agency worker, the identity of the
end-user.
9. 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;
10. 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.
Probationary Periods
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.
Collective Agreements
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.
Conclusion
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.
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.