In brief:
The European Union (Transparent & Predictable Working Conditions) Regulations 2022, (“the regulations”) support improved working conditions for almost all employees through increased transparency in written terms of employment. Those not protected are a limited group of employees, who work less than four weeks’ service and a working week of three hours or less.
Ireland already has strong legislative protection in place for employees regarding their written terms of employment. These regulations streamline the timelines for delivery of prescriptive written terms and should cause employers to pause to review their terms and benefits.
Every new employee is entitled to receive a written statement of the terms and conditions outlined in the regulations. Existing employees are entitled to request updated statements, but the benefits apply to the employees irrespective of whether they request an updated contract.
Here’s what to expect as an employer.
In addition to the existing obligations on employers to provide information to employees, employers must provide the information below in writing to employees. The statement must be signed and dated by the employer and can be provided in paper form or electronically. The employer must retain proof of electronic sending or receipt of the statement by the employee.
Employers must provide core terms of employment within five days from commencement of employment. The new terms required to be provided include:
Employers must provide employees with more comprehensive terms of employment within one month from the commencement of employment. The new terms include:
However, If an employee is not provided with the minimum notice or where they are requested to work outside of the predetermined reference hours and day, they will have a right to refuse the work without risk of any adverse consequences.
Employers must notify employees of any changes to their terms of employment no later than the day on which the change takes effect.
The regulations prohibit the use of excessive probation periods. For private sector employers, the maximum probation period cannot exceed six months, except in exceptional circumstances, in which case it can be extended to a maximum of 12 months if it is in the interest of the employee.
Probation periods can be extended by a period of employee absence.
In the case of employees engaged under a fixed term contract, any probation period must be proportionate to the duration of the contract. If a fixed term contract is renewed, an employer cannot include a new probation period.
For employees who are currently engaged on a probation period of more than 6 months, the term will expire on the date that the probation was due to expire or 1 February 2023, whichever is the earlier date.
Employers can no longer prohibit employees from taking up other employment outside of their work schedule. Employees are protected from any adverse treatment for taking up other employment. There are some exceptions, and an employer can prohibit an employee from taking up additional employment where the restriction imposed on the employee is proportionate and based on objective grounds. The objective grounds must be included in the contract of employment and can include:
Employees with 6 months’ service and who have completed their probation, may request more predictable and secure working conditions. This request can be made once in any 12-month period. The employer must provide a written reasoned reply to the request within one month. A verbal reply can be provided where the same worker submits a subsequent similar request, and the situation remains unchanged.
Where an employer must provide training by law or a collective agreement for an employee to perform their role, such training must now be provided at no cost to the employee and take place during working hours (where possible). The time spent training will count as working time and should be paid.
Employers must provide employees who will be posted to work outside of Ireland with additional written information about their role. This includes:
In the event that a collective agreement or a Registered Employment Agreement applies to certain term(s) of the employees’ employment (probation, parallel employment, transition to more predictable working conditions and mandatory training), then the regulations will not apply.
Employees have a right of redress to the Workplace Relations Commission for breaches of the regulations. Complaints may be brought within 6 months (or 12 months with reasonable cause for delay) of the contravention of the employee’s rights. The maximum compensation that can be awarded is four weeks’ remuneration.
Employers should review their template agreements to ensure that they fully meet their obligations. This will include considered thought around the duration and use of probation clauses, the objective reasons why parallel employment is prohibited (if applicable) and the communication system around planned working hours for employees working variable hours in a week.
The updated regulations will have an immediate effect and provide more transparent and predictable working conditions for all employees.