How will the new Transparent & Predictable Working Conditions Regulations increase employee protection

Deirdre Malone, Head of Employment Law, reviews the EU (Transparent & Predictable Working Conditions) Regulations 2022 and its employee impact.

In brief:

• Increased protection for employees in written contract terms
• Employers restricted in the use of probationary periods and preventing parallel employment
• Employers should review their employment agreements and update to ensure compliance with the Regulations

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.

1. Statement of Terms

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.

Day five statement

Employers must provide core terms of employment within five days from commencement of employment. The new terms required to be provided include:

• The commencement date
• The place of work (or if there is no fixed place of work, a statement specifying that the employee is employed at various places or is free to determine the place of work)
• The title, grade, nature or category of work or a brief specification or description of the work
• Any terms and conditions regarding hours of work (including overtime)
• The duration and conditions of any probation period
• The calculation of pay, frequency and method of pay as well as the pay reference period

Within one month

Employers must provide employees with more comprehensive terms of employment within one month from the commencement of employment. The new terms include:

• Any training entitlement provided by the employer.
• The identity of the social security institution receiving social insurance contributions and any protection relating to social security provided by the employer.
• For employees with unpredictable working arrangements, they must be advised:
  • that their work schedule is variable.
  • the number of guaranteed paid hours.
  • the pay for additional hours worked.
  • working hours/days that they may be required to work.
  • the minimum advance notice they are entitled to before starting any work assignment or weekly work schedule (which is 24 hours).

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.

2. Changes to Terms and Conditions

Employers must notify employees of any changes to their terms of employment no later than the day on which the change takes effect.

3. Probationary periods

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.

4. Parallel employment

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:

• Health and safety
• Protection of business confidentiality
• Avoidance of conflict of interest
• Safeguarding productive and safe working condition
• Compliance with applicable statutory/regulatory obligations

5. Right to request a transfer to more predictable and secure working conditions

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. 

6. Mandatory training

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.

7. Employees working outside of Ireland

Employers must provide employees who will be posted to work outside of Ireland with additional written information about their role. This includes:

• The country in which the employee will be working
• The pay and benefits that they will receive from the host EU member state (and currency for pay)
• Terms and conditions regarding expenses for travel, board and lodging
• A link to the host EU member state’s website about the employee’s rights in that country as a posted worker

8. Collective agreements

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.

9. Redress

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.

Conclusion

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.