Transparent and Predictable Working Conditions Directive

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 became law on 16 December 2022. Tommy Smyth provides an overview of what this means for businesses

This new directive amends a number of pieces of legislation and introduces several new and immediate requirements on employers in areas relating to:

• Terms of Employment (Information) Act 1994

• Organisation of Working Time Act 1997

• Protection of Employees (Fixed-Term Work) Act 2003

• Workplace Relations Act 2015

Outlined here are some of the key changes resulting from this new legislation. These are not to be taken as formal legal guidance. As is normal with new legislation, proper guidance has not been given to support employers as to the meanings of some legal language.

Statement of Terms of Employment

Changes to 5 Day Statement of Terms

Under this new legislation, additional information must now be provided to employees as part of their core terms within 5 days of commencing employment.

• The duration and conditions relating to a probationary period.

• The place of work, or where there is no xed or main place of work, a statement con rming that the employee is employed to work at various locations or is free to.

• The title, grade, nature or category of work, or a brief description of the work the employee is employed to carry out.

• Commencement date of contract.

• Any terms and conditions relating to hours of work (including overtime).

One Month Statement of Terms of Employment

Parallel (Secondary) Employment

• Employers can no longer prohibit employees from taking up additional employment outside of their work schedule, or treat them adversely for doing so.

• If an employer wishes to impose an incompatibility restriction on an employee they must provide the employee with details of the objective grounds on which it is based, either in the contract of employment or in a written statement.

Objective grounds for imposing an incompatibility restriction include:

• Health and Safety

• Protection of confidentiality

• Avoidance of conflicts of interests

• Safeguarding productive and safe working conditions

• This may require clients to update their current language regarding parallel or secondary employment with immediate effect.

Another key change is that all other terms of employment, which previously had to be provided to an employee within two months of commencing, must now be provided within one month.

• This one-month statement must now also include the following additional terms:

• The training, if any, to be provided by the employer.

• In the case of temporary agency workers, the end user or rm hiring the worker.

• If the work pattern is entirely or mostly unpredictable, the statement must inform the employee;

• That the work schedule is variable,

Probation

Probation periods can no longer exceed 6 months in duration, except in the case of public servants (maximum 12 months) or exceptional circumstances (the definition of which is yet to be clarified). Probation periods can, however, be extended by the duration of any employee absence. Probationary periods included in fixed-term contracts must be proportionate, taking account of the duration of the contract and the nature of the work. Where a fixed-term contract is renewed, the employee cannot be subject to a new probationary period. For any employee who is currently subject to a probation period exceeding 6 months, and/or who has completed at least 6 months of their probation period, their probation will automatically expire on February 1st.

the number of guaranteed paid hours and remuneration for any work carried out in addition to those hours.

• The reference hours and days within which the employee may be required to work.

• The minimum notice period the employee is entitled to before commencement of work.

• The identity of social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security by the employer.

• For employees who are required to work outside the State, the statement must now also include the country or countries in which work is to be performed and its duration.

Any change to information provided must be noti ed to the employee on or before the date the change takes place. This legislation also introduces new obligations on employers in terms of the statement of terms provided to posted workers, which are not covered here.

Any statement provided to employees must be:

• Provided in writing.

• Signed and dated on behalf of the employer.

• Sent in paper form, or accessible to an employee in a form that can be printed and stored.

• The employer must retain proof of transmission or receipt in either hard copy or electronic form.

• We recommend that employers issue all new employees with their contract of employment prior to commencing their new role. In doing so, the employer can meet all legal obligations provided for in both the 5 day and one month statement.

Transition to another form of employment

Under this new legislation, employees who have completed their probation period and have been in continuous employment with the employer for at least 6 months, can now request a form of employment with more predictable and secure working conditions. An employer must give a reasoned response, in writing, within one month of a request. Employees can make this request once in any 12-month period.

Mandatory Training

Any mandatory training required by law or collective agreement must be provided to the employee free of charge, must count as working time, and where possible should take place during working hours. What exactly is meant by ‘mandatory training’ will require further clarity over time.

Working Hours

All work must now take place or be scheduled within the, now de ned, reference hours and days included in the employee’s written terms as outlined above. Where work is not within these reference hours and / or minimum notice has not been provided, the employee is entitled to refuse the work without fear of penalisation or sanction.

Recommendations for Employers

We recommend employers seek advice on any specific queries, however there are some key recommendations as a result of this legislative update:

• Employers should complete an audit of existing terms and conditions of employment (Contract of Employment / Employee Handbook) to ensure compliance with the new requirements outlined above.

• Employers should ideally provide all employees with a full contract of employment prior to their employment start-date. In doing so, employers can meet the requirements for both the ‘5-day terms’ and the ‘1-month terms’ in one central document. Employers must retain proof that the employee has received these terms.

• Employers should list all employees currently on probation and ensure there is clarity on their current end-date. Any revised end-dates should be communicated to employees and their line managers. We would remind you again that any existing probation periods longer than 6 months in duration automatically end on February 1st.

• Employers need to review current training processes and, from now on, any mandatory training (required by law or collective agreement) must be provided to the employee free of charge and, where possible, should take place within working hours. This will be considered as working time.