The European Union (Transparent and Predictable Working Conditions) Regulations 2022 became law on 16th December 2022. Given all the legislative changes in recent weeks you would be forgiven for not noticing this one. It is however a key piece of law that makes amendments to the following Acts:
- Terms of Employment (Information) Act 1994
- Organisation of Working Time Act 1997
- Protection of Employees (Fixed-Term Work) Act 2003
- Workplace Relations Act 2015
This EU Directive aims to improve working conditions in the European Union by promoting more transparent and predictable employment while ensuring labour market adaptability.
Terms of Employment (Information) Act 1994
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:
- 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;
- The title, grade, nature or category of work for which the employee is employed or a brief description of the work;
- The date of commencement of contract of employment;
- Any terms and conditions relating to hours of work (including overtime);
- The training, if any, to be provided by the employer.
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.
Finally, any change to the information provided must be notified to the employee by or before the day the change takes effect. This was previously one month after the change has occurred.
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.
A watch out in relation to this change is that if perhaps you have an employee who commenced employment before the 16th December 2022 and was subject to a probationary period longer than 6 months, and has completed at least 6 months service with you, their probation will now expire on 1st February 2023, if that date is earlier than the end of the contractual probationary period.
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.
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.
Organisation of Working Time Act 1997
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.
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.
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. We recommend that Employers review their contracts of employment in light of these provisions to ensure that they are amended to comply with the provisions of the Regulations, and that the expiry of any probation period on 1 February 2023 has been caught.
Don’t hesitate to contact our HR Team on [email protected] or 01 6622755.