The implementation of Transparent and Predictable Working Conditions Regulations 2022

EU Directive 2019/1152 (the “Directive”) has recently been transposed into Irish Law by the enactment of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the “Regulations”).

This was enacted on 16^th December 2022 and seeks to improve employee’s general working conditions in Ireland, with a focus on promoting greater transparency and predictability in the workplace.

Although some of the provisions contained in the Directive are already incorporated into existing Irish employment law, there have been some important changes made by the Regulations, which we have outlined below:

1. Changes to Terms and Conditions of Employment

Under the Employment (Miscellaneous Provisions) Act 2018 (the “2018 Act”), employers are required to provide a written statement of the employee’s terms and conditions of employment within 5 days from the employee’s commencement date. Under the Regulations, the information required in this statement has been expanded to include a number of new provisions including:

• Probationary period – if the employee is subject to a probationary period, they must be provided with the terms and conditions attaching to the probation.
• No established place of work – if there is no established place of work, the statement must outline that they are employed in various locations, or that they are free to determine their place of work.
• Category/ grade of work – employers are required to set out the title, grade, nature and category or a brief description of the work for which the employee is employed.
• Commencement date – there must be a clear date of commencement of employment.
• Hours of work – the employee must also be provided with the terms and conditions relating to their hours of work, including overtime.

Employers who fail to furnish the 5-day statement may be guilt of a summary offence.

The above terms are in addition to the terms that are already required to be provided by the 2018 Act, which requires employers to provide their employees with the full name and address of the employer, the duration of the employment contact and the usual working hours that an employee will be expected to work in a typical week. Furthermore, the Regulations amends the Terms of Employment (Information) Act 1994, employers are now required to provide employees with their terms and conditions of employment within the first month of employment, as opposed to within the first two months, as was previously the case.

Additionally, employers must now notify employees in writing of any changes to employee’s terms and conditions of employment the day the change takes effect as opposed to within one month which was previously the case.   Failure to notify employees of changes or to furnish the terms and conditions of employment may lead to employees being awarded compensation in the Workplace Relations Commission of up to four weeks renumeration.

2. Mandatory Training

The Regulations sets out that if there is a statutory obligation for the employer to provide training to an employee to allow them to do their work, it must be carried out at the employer’s expense during working hours and the employee must be paid for this training.

3. Changes to the predictability of work

One of the key objectives of the Directive was to make working conditions more predictable. This has been implemented in the Regulations by the amendments that have been made to the Organisation of Working Time Act 1997. Employers were previously required to give their employees at least 24 hours’ notice before they are scheduled to work. Under the Regulations, an employee has the right to refuse to work if they are given less than 24 hours’ notice, without being subjected to adverse treatment from their employer for refusing such work.

4. Probationary periods

There is now a statutory limit on probationary periods. All probationary periods must be limited to 6 months, except in exceptional circumstances. An employee’s probationary period may on occasion be extended up to a maximum of 12 months, if it is in their interest to do so, or if there has been an extended period of absence during the probationary period. If an employee has been subjected to an extended probationary period and they have completed 6 months of work, the probationary period must end the later of either the 1st of February 2023 or the day on which the probationary period was due to expire.

5. Exclusivity

Under the Regulations, employers cannot prohibit employees from taking up employment elsewhere during the course of their employment subject to certain exemptions. Employees may be prohibited from taking up additional employment due to health and safety issues, to avoid potential conflicts of interest or if it goes against statutory regulations or professional guidelines. If an employer wishes to formally restrict an employee from taking up work elsewhere, details of this restriction and the reasoning behind it must be included in the employee’s contract of employment. Alternatively, a written statement to the same effect may be given to the employee afterwards.

What does the Regulation mean for employers?

Employers should:

• review and amend their policies and template terms and conditions of employment to ensure that they are compliant with the Regulations;
• review probationary period practices, clauses and policies for new employees;
• review the probation period timeline of any employees who started over 6 months ago; and
• ensure that all employees have received the necessary up to date mandatory training, if applicable, and in a manner that is compliant with the Regulations.

About the author: Nikita Kelly is a solicitor on the employment team