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European Union (Transparent and Predictable Working Conditions) Regulations 2022

European Union (Transparent and Predictable Working Conditions) Regulations 2022
Background

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the 2022 Regulations) became law on 16 December 2022. They transpose EU Directive 2019/1152 of the European Parliament and of the Council of 20 June 2019 on Transparent and Predictable Working Conditions in the European Union.

Legislative Changes Arising from the 2022 Regulations

To transpose directive 2019/1152, amendments have been made to the following pieces of legislation:  

  • Terms of Employment (Information) Act 1994
  • Organisation of Working Time Act 1997
  • Protection of Employees (Fixed-Term Work) Act 2003
  • Workplace Relations Act 2015
  1. Amendments to the Terms of Employment (Information) Act 1994

A point to note about these Regulations: there is an expanded definition of "contract of employment" and thus of "employee" which now includes a contract whereby "an individual agrees with another person personally to execute any work or service for that person".

Amendment to the statement of terms of employment

The Employment (Miscellaneous Provisions) Act 2018 introduced the right to a day five statement of five core pieces of information.

The “Day 5” statement has been amended to now include additional information relating to:

  • The duration and conditions relating to a probationary period, if applicable.

In addition to this, a number of items that were previously part of the written statement to be provided within two months must now be provided as part of the “Day 5” statement:

  1. The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;
  2. The title, grade, nature or category of work for which the employee is employed or a brief description of the work;
  3. The date of commencement of contract of employment;
  4. Any terms and conditions relating to hours of work (including overtime).

Separately, all other terms of employment required to be given to the employee under the Terms of Employment (Information) Act 1994 are now required within one month.

This written statement must now include the following additional terms:

  1. The training, if any, to be provided by the employer;
  2. In the case of a temporary contract of employment, the identity of the user undertakings i.e., the person or firm hiring the agency worker
  3. If the work pattern of the employee is entirely or mostly unpredictable, the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, the reference hours and days within which the employee may be required to work and the minimum notice period the employee is entitled to before the start of a work assignment;
  4. 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.

The written statement to be provided to employees who are required to work outside the State must now also include:

  • The country or countries in which the work outside the State is to be performed and its duration.

Where an employee is a posted worker within the meaning of the European Union (Posting of Workers) Regulations 2016, additional information must be be provided, namely:

  1. The remuneration to which the employee is entitled in accordance with the applicable law of the host Member State (i.e. Irish law);
  2. Any allowances specific to the posting, if any, and any arrangements for reimbursing expenditure on travel, board and lodging;
  3. The link to the official national website developed by the host Member State concerning the posting of workers and the provision of services [see Posted Workers - Workplace Relations Commission]

Any change to the information provided must be notified to the employee by or before the day the change takes effect.

Form of Statement to be Provided

The 2022 Regulations provide that any statement to be provided to employees under the Terms of Employment (Information) Act 1994 as amended by the 2022 Regulations, shall be:

  1. In writing;
  2. Signed and dated on behalf of the employer
  3. Transmitted on paper, or is accessible to employee, which can be printed and stored and the employer must retain proof of transmission or receipt in electronic form.
Maximum Duration of Probationary Period

Up to now, probationary periods have been a matter for employment contracts and not subject to statute.

With effect from 1 August 2022, in situations where an employee is subject to a probationary period at the commencement of employment, that period shall not exceed six months, except in limited circumstances as provided for in the regulations. In those limited exceptions the maximum period may be extended to no more than twelve months.  

Parallel Employment

The Directive ensures that an employer shall not prohibit an employee from taking up employment with another employer, outside of the work schedule established with the first named employer. An employer shall not subject an employee to adverse treatment for taking up employment with another employer.

An employer may restrict an employee from taking up other employment if they have objective grounds for doing so. Examples1 of such objective grounds may be:

  • Health and safety,
  • Protection of business confidentiality,
  • Integrity of public service,
  • Avoidance of conflicts of interest.

Details of any restriction, including the objective grounds on which the restriction is based, must be included in the contract of employment or in a written statement provided to the employee.

Transition to Another form of Employment

An employee, who has completed their probationary period and has been in continuous service with an employer for at least six months, may request a form of employment with more predictable and secure working conditions, where available, and receive a reasoned reply from their employer. An employee can make such a request once in any twelve-month period.

An employer shall provide a reasoned written reply to the request within one month of the request. In the circumstances of a subsequent request from the same employee where the situation remains unchanged, an oral reply is permitted.

Mandatory Training

Where an employer is required by law or collective agreement to provide training to an employee to carry out the work for which they are employed, such training shall be provided to the employee free of cost and shall count as working time. Where possible, this training should take place during working hours.

Collective Agreements

Where there is a relevant agreement providing for any matters covered by the 2022 Regulations, the relevant section of the 2022 Regulations shall not apply to the employee to whom the relevant agreement has effect.

1This list is not exhaustive however the regulation lists a number of indicative objective grounds [See Regulations].

  1. Changes to the Organisation of Working Time Act 1997
Minimum Predictability of Work

Section 17 of the Organisation of Working Time Act 1997 (OWTA) is amended by section 13 of the 2022 Regulations to provide that:

  • As well as the minimum notice period specified in the OWTA, a work assignment now must take place within the reference hours and days notified to the employee as part of their written terms.
  • Where the notice of a work assignment provided to an employee is not within the minimum notice period of 24 hours or the work assignment is to take place outside the reference hours and days, the employee has the possibility to refuse the work assignment without adverse consequences.

Where there is a relevant agreement, such as a collective agreement or registered employment agreement, providing for the matters referred to in section 17 of the OWTA or section 13 of the 2022 Regulations, these sections will not apply in relation to an employee to whom the relevant agreement has effect.

  1. Changes to the Protection of Employees (Fixed-Term Work) Act 2003
Probation Periods for Fixed-Term Workers

Where a fixed-term employee has entered into a fixed-term contract with an employer which provides for a probationary period, the length of such probationary period shall be proportionate to the expected duration of the contract and the nature of the work.

Where a fixed-term contract is renewed for the same functions, the contract shall not be subject to a new probationary period.

  1. Changes to the Workplace Relations Act 2015
Complaints to Workplace Relations Commission

Section 12 of the 2022 Regulations amends Schedule 5 of the Workplace Relations Act 2015 to allow the Workplace Relations Commission hear a complaint in relation to these amendments.