Employment Law Spotlight: The European Union (Transparent and Predictable Working Conditions) Regulations 2022

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INTRODUCTION

EU Directive 2019/1152 on Transparent and Predictable Working Conditions was transposed into Irish law on the 16 December 2022 by the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (“Regulations”).

The Regulations apply to all employees in the Republic of Ireland, with limited exceptions to those with less than 6 months service.  As the title suggests, the Regulations aim to promote transparent and predictable employment and in turn improve working conditions. The Regulations also create new employee rights and alter employers’ obligations under the Terms of the Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the Protection of Employees (Fixed-Term Work) Act 2003.

KEY ELEMENTS 

STATEMENT OF TERMS OF EMPLOYMENT 

The Employment (Miscellaneous Provisions) Act 2018 required employers to provide employees with a written statement of the terms and conditions of their employment within 5 days of commencement (“5 Core Terms”). The 5 Core Terms included the following:

  • Full name of the employer and employee;
  • Registered address of the employer as provided for under the companies registration office;
  • Expected duration of contract / type of contract i.e. fixed term, temporary or permanent;
  • Rate or method of calculation of employees remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000 (as amended);
  • Then number of hours which the employer reasonably expects the employee to work per day and per week.

The Regulations have amended the 5 Core Terms to include the following:

  • the duration and conditions of the probationary period where applicable i.e. if the disciplinary policy does not apply or conditions relating to early termination;
  • the place of work; where there is no fixed place of work, a statement specifying that the employee is employed at various locations;
  • the title, grade, nature or category of the work, or a brief description of the work;
  • the date of commencement, and any terms relation to hours of work, including overtime;
  • the employer’s policy on the manner in which tips or gratuities and mandatory charges are treated (provided you fall within the ambit of the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022).

Notwithstanding the 5 Core Terms, employers are also now required to provide employees with a statement of terms and conditions (“Statement”) of employment commonly referred to as the “contract of employment”, within 1 month of commencement of employment (this was previously 2 months).

Under the 1994 Act, the Statement was required to consist of the following details:

  • the full names of the employer and the employee;
  • The address of the employer;
  • The place of work or, where there is no main place of work, a statement indicating that an employee is required or permitted to work at various places;
  • Job title or nature of the work;
  • Date of commencement of employment;;
  • If the contract is temporary, the expected duration of employment
  • If the contract is for a fixed term;
  • The rate of pay or method of calculating pay;
  • Whether pay is weekly, monthly or otherwise;
  • The rate of pay or method of calculating pay, and pay reference period for the purposes of the National Minimum Wage Act, 2000;
  • Terms or conditions relating to hours of work,  including overtime;
  • Terms or conditions relating to paid leave (other than paid sick leave);
  • Any terms or conditions relating to incapacity for work due to sickness or injury;
  • Any terms or conditions relating to pensions and pension schemes;
  • Periods of Notice or method for determining periods of notice;
  • A reference to any collective agreements which affect the terms of employment.

Now under the Regulations, the Statement is required to include the following:

  • Training, if any, the employer may provide;
  • In the case of a temporary agency worker, the identity of the end-user;
  • Additional information for employees whose work patterns are mostly or entirely unpredictable. Including details of the reference hours and days within which the employee may be required to work, the number of guaranteed paid hours, remuneration for work performed in addition to those hours, and the minimum notice period before the start of a work assignment.

Under the Regulations, the Statement and 5 Core Terms furnished by the employer are required to be signed and dated on behalf of the employer only, with a copy stored either physically or electronically. It is advisable to retain proof that said documents have been provided to employees.

PROBATIONARY PERIODS

The Regulations have introduced a statutory 6 month limit on probationary periods.  Probationary periods may be extended to a maximum of 12 months, “on an exceptional basis”, where justified by the nature of the employment or in the “interest of the employee”.  It may also be possible to extend the probationary period beyond 6 months, if the employee was absent during this period i.e. protective leave or illness.

Equally, employees with over 6 month’s service who are subject to a probationary period longer than 6 months, will be deemed to have completed their probation on 1 February 2023 if their probationary period has not expired by then.  This excludes public service employees.

The Regulations also require that probationary periods for employees on fixed-term contracts must be proportionate to the length and nature of the contract. Probationary periods will also be prohibited when renewing a fixed-term contract.

PARALLEL EMPLOYMENT

The Regulations require that an employer must not prohibit employees from taking up employment with another employer outside of their work schedule. Employers are also prohibited from subjecting employees who take up employment with another employer to adverse treatment. Adverse treatment is not defined under the Regulations.

  • An employer can however restrict the employee from taking up parallel employment where the restriction is proportionate and based on objective grounds. such grounds include the following:
  • Health and Safety;
  • The protection of business confidentiality ;
  • The avoidance of conflicts of interest;
  • Safeguarding productive and safe working conditions;
  • Compliance by the employer and the employee with any applicable statutory or regulatory obligations;
  • Compliance by the employee with any professional standards for the time being in force.

In the event an employer restricts an employee from taking up additional employment, they are in turn required to provide the employee with the details of the restrictions, setting out the objective ground being relied upon. This should be furnished to the employee in the Statement.

THE RIGHT TO TRANSFER TO ANOTHER FORM OF EMPLOYMENT

Under the Regulations, an employee who has more  than 6 months continuous service and has completed their probationary period (if applicable) may, once in any 12 month period,  request a form of employment with more predictable and secure working conditions, where available. The employee is also entitled to receive a reasoned written reply from his or her employer within one month of the request.

Employers are permitted to provide an oral reply where a further request is made by the same employee, where the situation of the worker remains unchanged.

MANDATORY TRAINING 

If an employee is required to undergo training which an employer is legally required by law or by way of a collective agreement to be provided in order enable them to carry out the work they are employed to do, the training must:

  • be provided to the employee free of cost;
  • count as working time; and
  • where possible take place during working hours.

COLLECTIVE AGREEMENT

The Regulations as set out above do not apply to employments that are governed by a relevant agreement that already addresses the points raised.

A relevant agreement meaning a collective agreement that is approved by the Labour Court or a registered employment agreement.

Conclusion

The aim of the Regulations is to provide employees with more foreseeable and transparent working conditions, and remove any uncertainty they may have.  Employers should familiarise themselves with the Regulations to avoid any penalties. For example, an employer who fails to adhere to the Regulations around terms of employment, and does not provide a statement of employment after 5 days, will be guilty of an offence and could be held liable on summary conviction.

END.

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