The Transparent and Predictable Working Conditions Regulations 2022 ("the Regulations") came into effect on 16 December 2022. The Regulations transpose the EU Directive 2019/1152 on Transparent and Predictable Working Conditions ("the Directive"). The Regulations amend employers' obligations under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, the Workplace Relations Act 2015 and the Protection of Employees (Fixed Term Work) Act 2003.
The purpose of the Directive was to provide transparency in working arrangements and protection to those employees on less secure contracts, for example, temporary contracts or gig economy workers. However, the Regulations apply to all employees. Given that the Regulations have just been implemented this is an opportune time for employers to review their terms and conditions to ensure that they meet their new obligations under the Regulations.
The Regulations apply to all employees except those that have been employed for less than four consecutive weeks or employees who work on average of three hours or less per week.
The key elements of the Regulations are as follows:
- Probationary periods cannot exceed six months (with certain exceptions). In exceptional circumstances the six-month probationary period can be extended to no more than twelve months if it is in the interest of the employee.
- Employees with over six months service (excluding public service employees) who are subject to a probationary period which exceeds six months will be deemed to have completed their probation on 1 February 2023 if their probationary period has not expired by that date.
- Probationary periods will be extended during periods of employee absence.
- Probation periods in fixed term contracts must be proportionate to the length of the contract and the nature of the work. Probation period are prohibited when extending a fixed term contract.
- Prohibition on exclusivity of work outside an employee's working hours except where proportionate and based on objective grounds. The Regulations set out a range of objective grounds to include but not limited to health and safety, confidentiality and conflict-of-interest. Employers who are relying on an incompatibility restriction must set out the details of their objective grounds in the contract or in writing.
- Employers are also prohibited from subjecting the employee to adverse treatment for taking up employment with another employer.
- Assignments must take place within the reference hours or days notified in the employee's terms and conditions. If an assignment does not take place within the reference hours or the requisite 24-hour notice is not provided the employee can refuse the assignment and cannot be penalised.
Notification of terms and conditions
- Changes to the current notification date for terms and conditions and core terms as well as the information to be provided on those dates. Previously terms and conditions were required to be furnished within 2 months of commencing employment with core terms being supplied within five days. The new time limits for terms and conditions are one month with other terms to be supplied within five days.
- Additional information which must now be supplied on both dates are set out in the Regulations.
- Any change in terms of conditions must be notified in writing no later than the day on which the change takes effect rather than the previous one-month time limit.
- All statements must be provided in writing, signed and dated by the employer and provided in hard copy or in a manner that is accessible to the employee. The employer must retain proof that the terms have been provided to the employee.
Request to transfer to more predictable work
- Employees with at least six months service can request to move to more predictable and secure employment where available. A reasoned written response must be provided by the employer within one month. The employee must wait another twelve months before making a further request.
- Employers are obliged to provide free training to employees where the training is required by law or a collective agreement. Time spent training should be counted as working time and where possible should occur during working hours.
- Additional information obligations in relation to posted workers who are required to work outside the state.
- Employers may be able to avoid their obligations regarding probationary periods, exclusivity of employment and the right to request transfer if the employment is governed by a collective agreement or registered employment agreement.
Impact on Employee Contracts
All employers will need to reconsider their terms and conditions to ensure they align with the Regulations. We have set out the key changes and the likely impact of those changes below:
1. Probationary periods - New Employees
Employers will need to consider the length of their probationary periods when issuing new contracts of employment. Many employment contracts include an initial probationary period which is subject to extension. Contracts are normally drafted to ensure probationary periods (to include the required notice period) do not exceed twelve months to avoid the application of the Unfair Dismissals Acts 1977 – 2015. Given that the Regulations establish a maximum statutory probation period of six months employers will need to consider whether they will apply a six-month probation period or a shorter period with the right to extend up to the six-month period. Employers may also need to re-examine their performance management processes to ensure reviews are completed within the new probationary periods.
There is a long stop date of 1 February 2023 for probation periods in existing contracts of employment (pre-16 December 2022) for employees with more than six months' service whose probation periods exceed six months. It would be wise for employers to carry out an employee audit to identify employees who fall into this category prior to 1 February 2023 to ensure no actions need to be taken prior to that date.
2. Exclusivity – Exclusivity clauses in contracts can take many forms. Some prohibit employment outside the workplace entirely. Others require the employer's consent. Under the Regulations employers can no longer prohibit an employee from working for another employer unless they fall under the objective grounds contained in the Regulations. Employers should take this opportunity to determine what roles (if any) require exclusivity to protect the business. Exclusivity causes may need to be tailored and drafted on a case-by-case basis for specific roles.
3. Written Notification of Terms – Prior to the implementation of the Regulations an employer was obliged to notify employees of specific terms in writing after a five-day period and provide a statement of terms and conditions within two months. The Regulations now impose two separate deadlines for the provision of information however the nature that information has changed. The two information deadlines are now five days and one month.
The following additional information be provided within five days: the place of work, title or category of work, where probationary period applies, its duration and any conditions , date of commencement and details of terms and conditions relating to hours of work.
The following additional information must be provided within one month: any training provided by the employer, if the employee's working pattern is unpredictable the number of guaranteed paid hours and remuneration for those hours, reference hours and days and length of notice of assignments, the identity of the end user agency workers in temporary contracts, and the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment.
To limit risk employers would be well advised to issue full terms and conditions (containing all information required at the five-day and one month stage) in advance of an employee commencing employment.
Following the changes made by the Regulations we would recommend employers to take the following steps:
- Carry out a review of your template employment contracts and timelines for notification to ensure they meet the requirements of the Regulations.
- Update template employment contracts, as required.
- Consider the exclusivity clauses contained in your template contract/s of employment. If exclusivity is required for specific roles, update the contract to include the objective justification by reference to the Regulations.
- Identify any staff on probation who have worked more than six months to ensure that any required appraisals are completed in advance of the long stop date of 1 February 2023.
- If you retain employees on less transparent or secure contracts examine your template contracts to ensure they meet the requirements in the Regulations.
- If you retain posted employees, ensure there is a system in place to ensure they are being furnished with the required information under the Regulations.
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.