First published: May 22nd 2023
Last updated: May 22nd 2023

What are the Transparent and Predictable Working Conditions Regulations?

The Transparent and Predictable Working Conditions Regulations 2022 (“the Regulations”) make amendments to a number of existing Irish employment laws.

The Regulations transpose EU Directive 2019/1152 on Transparent and Predictable Working Conditions (“the Directive”) into Irish law.

The Directive aims to provide more security to employees in precarious forms of employment like employees on temporary contracts or gig economy workers.

Why you need this employer’s guide

If you’re an employer in Ireland, you need to review your contracts of employment, handbooks and employment practices to ensure they all comply with the Regulations.

This guide will walk you through the recent changes in employment law and the actions your business should take to ensure you’re compliant.

What laws have changed?

The Regulations introduce a number of new pro-employee rights under the following statutes:

• Terms of Employment (Information) Act 1994
• Organisation of Working Time Act 1997
• Protection of Employees (Fixed Term Work) Act 2003, and
• Workplace Relations Act 2015

Changes to the Terms of Employment (Information) Act 1994

The Terms of Employment (Information) Act 1994 (TEI Act) obliges employers to issue employees with written statements confirming their terms and conditions of employment.

The Regulations make a number of key changes to employer’s obligations under the TEI Act.

Change no. 1 - The Day 5 Statement

The Employment (Miscellaneous Provisions) Act 2018 originally required employers to provide the following information to employees in writing no later than 5 days after commencing employment:

• The full names of the employer and employee
• The address of the employer
• The expected duration of the contract (if the contract is temporary or fixed-term)
• The rate or method of calculating pay, and the ‘pay reference period’ (i.e. weekly, fortnightly or monthly)
• What the employer reasonably expects the typical length of an employee’s working day and week to be (for example, 8 hours a day, 5 days a week).

The Day 5 statement must now also include the following:

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

FYI, the last four items which are now to be set out in the Day 5 Statement were previously required to be provided in the written statement of particulars required under the 1994 Act.

Employer action

We recommend updating your template contract of employment to include all the required information and to issue your revised contracts to all new employees either on or before they start work.

Change no. 2 - The Written Statement of Terms of Employment

All other terms of employment required to be given to the employee in writing under the 1994 Act are now required within one month (this was previously two months).

This written statement must now include the following additional terms:

• The training, if any, to be provided by the employer
• 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
• 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
• 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.

Employer action

We recommend updating your template contract of employment to include all the required information and to issue your revised contracts to all new employees either on or before they start work.

Change no. 3 - Probation Periods

6 Month Maximum

With effect from 1 August 2022, probationary periods in the private sector must be no more than 6 months in duration (and for public servants, must be no more than 12 months in duration).

Employers may extend probationary periods on an exceptional basis for no longer than 6 months subject to a 12-month maximum and it is in the interest of the employee to extend the probationary period.

Employers will therefore be in a position to extend probation periods if:

• It is an exception rather customary to extend probation periods
• It is in the employee’s interests (if the alternative is termination, extending the probation period is presumably in the employee’s interests), and
• The extended probation period lasts no longer than 12 months.

There may be a limited number of employees in the private sector who commenced employment prior to the 16 December 2022 and who have signed employment contracts that include a probationary period of more than six months.

In these circumstances, the probationary period expires six months after the contract was signed and not the date on which the longer contractual probationary period would expire.

Probationary Periods in Fixed Term Contracts

Under the Protection of Employees (Fixed Term Work) Act, 2003 as amended by the Regulations, where a fixed-term employee has entered into a fixed-term contract with an employer, the length of a probationary period must be proportionate to the expected duration of the fixed-term contract and the nature of the work.

In addition, where an employer proposes to renew a fixed-term contract for the same functions and tasks, the fixed-term contract shall not be subject to a new probationary period.

A fixed term contract of 10 months for example should not therefore include a boilerplate 6-month probationary period. Any probationary period must be proportionate to the length of the contract.

Absences During Probationary Periods

If an employee is absent from work on any form of statutory leave (maternity, parent’s, statutory sick leave etc) during their probationary period, employers may extend the probationary period by the length of the employee’s absence. The duration of the employee’s absence on statutory leave would not therefore count towards the six-month maximum.

It’s important to note that only absences on statutory leave will allow an employer to extend the probationary period. The Regulations don’t allow for extensions of the probationary period for absences that are not statute-based.

Employer action

We recommend updating your template contract of employment and to update the probation clause as required under the Regulations.

Ensure that employees who started employment on or after 1 August 2022 do not serve more than a six-month probation period.

Change no. 4 - Parallel Employment

You must not prohibit an employee from taking up employment with a second employer if the second job is outside the work schedule you have agreed with the employee.

You may object however if the employee’s second job is not feasible based on objective grounds such as:

• Health and safety reasons
• Risks to your business confidentiality
• Risks to the integrity of a public service, or
• Conflicts of interest with your business.

Employer action

If you do object to a staff member taking up a second job, you must provide them with details of any such restriction (including the objective grounds) in either the contract of employment or in a separate written statement provided to the employee.

Change no. 5 - Right to transfer to more predictable and secure work

An employee, who has completed their probationary period and has been in continuous service with you for at least six months, may request a transfer to more predictable and secure working conditions. If you receive such a request, you must provide a reasoned reply. An employee can make such a request once in any twelve-month period.

Employer action

Ensure you are prepared to receive such requests and to provide a reasoned written reply to the request within one month of receiving it.

Change no. 6 - Mandatory training

Where your business is required by law or by a collective agreement to provide training to an employee to carry out their work, you must provide such training to the employee free of cost and count the training as working time.

Employer action

All mandatory training should be treated as paid working time and take place during working hours where possible.

Change no. 7 - Collective agreements

Where an employee is covered by either

(i) a collective agreement approved of by the Labour Court, or

(ii) a registered employment agreement,

it’s important to note that the rules on probationary periods, the right to seek parallel employment, the right to request more predictable and secure working conditions and the right to paid work-related training do not apply.

Employer action

Check the terms of any collective agreements or registered employment agreement to confirm the position and what staff are covered by any such agreements.

Change no. 8 - Changes to the contract of employment

If you make a change to the written statement of employment terms, you must notify the employee in writing no later than the day that the change takes effect (previously employers had one month within which to confirm changes in writing).

Employer action

Note that you cannot change fundamental terms of the employment contract without employee consent. Ensure that changes to non-fundamental terms are confirmed in writing no later than the day they take effect.

Change no. 9 - Minimum Predictability of Work

As well as giving employees at least 24 hours’ notice of when they are required to work, employers must ensure that work assignments take place within the reference hours and days notified to the employee as part of their written terms.

If you don’t provide an employee with the minimum notice of 24 hours of their next work assignment or the work assignment is to take place outside the reference hours and days provided in writing to the employee, the employee is entitled to refuse the work assignment without adverse consequences.

Employer action

Ensure employees receive at least 24 hours’ notice of their next work assignment and note the employee right to refuse a work assignment that is outside the reference hours or days set out in the written terms of employment.

Change no. 10 - Workers posted outside of Ireland

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

• The remuneration to which the employee is entitled in accordance with the applicable law of the host Member State (i.e. Irish law)
• Any allowances specific to the posting, if any, and any arrangements for reimbursing expenditure on travel, board and lodging
• A link to the official national website developed by the host Member State concerning the posting of workers and the provision of services.

Employer action

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. Ensure you provide any employees who are posted to work in another EU member state with all relevant information.

FAQs

What happens if you don’t comply with the Regulations?

An employee can take a claim to the WRC for breaching the Regulations. The WRC has authority to order employers to rectify any omissions in favour of the employee and order non-compliant employers to pay an employee compensation of up to 4 weeks’ remuneration.

When did the Regulations come into force?

The Regulations were passed without any advance notice from the Government and many employers have been surprised to learn that this new law came into effect on 16 December 2022.

What employees do the Regulations apply to?

While the Regulations will help workers in precarious forms of employment, they apply to all employees. All employers therefore need to ensure they are compliant with the Regulations.

What should employers do now to comply with the Regulations?

All employers need to review their employment documentation to ensure it aligns with the changes brought about by the Regulations.

In particular, we recommend the following:

• Review your company policy and practices around probationary periods
• Review how you are managing any workplace training requirements to ensure employees are not bearing the costs of any such training
• Consider how much notice employees receive of their working hours and whether they are always working within their stated ‘reference’ hours
• Review your exclusive service clauses to ensure they are consistent with the new parallel employment rules
• If you have posted employees working in other EU member states, ensure they receive the level of information required under the Regulations
• Prepare to receive requests from existing employees for an updated written statement of terms of employment that includes all the new terms required under the Regulations.

Our HR and Employment Law Experts will be happy to help you with any queries you have.