As of December 16th, 2022, the EU Directive on Transparent and Predictable Working Conditions was transposed into legislation amending a number of pieces of employment legislation and introducing new legal obligations for employers that require immediate attention. Set out below are details of the new obligations for employers and best practice guidance for implementation.
Terms and Conditions of Employment
1. There are now two important deadlines that employers must adhere to: the 5-day statement and issuing full terms and conditions within 1 month.
2. 5-day statement: Originally, an employer had to issue 5 core terms within 5 days of an employee commencing work including the full names of employer and employee, address of employer, expected duration of contract (when temporary or fixed term), the rate or method of calculating pay, and the ‘pay reference period’ and what the employer reasonably expected the normal length of an employee’s working day and week to be. Now, the 5-day statement must include additional terms all
of which should be issued to a new employee within 5 days of commencement of their employment
• Where a probationary period applies, its duration, and conditions.
• The place of work or, where there is no fixed or main place of work, confirm that the employee is employed at various places or is free to determine his or her place of work.
• The title, grade, nature, or category of work that the employee is employed for, or a brief description of the work.
• The date of commencement of the contract of employment.
• Any terms and conditions relating to hours of work (including overtime).
3. 1-month deadline: The Regulations provide that all other terms of employment required to be given to an employee under the Terms of Employment (Information) Act 1994, are now required within one month of the commencement of employment. This written statement must now include the following additional terms:
• The training, if any, to be provided by the employer, at no cost to the employee and provided during working hours.
• In the case of a temporary contract of employment, the identity of the user undertakings, for example the person or firm hiring the agency worker.
• If the working pattern of the employee is completely (or mostly) unpredictable, the number of guaranteed paid hours, the remuneration for work performed outside these hours, the hours and days when the employee may be required to work, and minimum notice to be given to the employee before the start of a work assignment.
• The identity of the social security institutions attached to the contract of employment receiving contributions, and any protection relating to social security provided by the employer.
• Where employees are required to work outside the State the written statement to include the country or countries in which the work outside the State is to be performed and its duration.
4. Nature and form of the statement issued to the employee must be in writing, signed and dated on behalf of the employer and transmitted on paper, or is accessible to employees, meaning it can be printed and stored with the employer now having to retain proof of the transmission or receipt in electronic form.
5. Non- fundamental changes to terms and conditions, were previously required to be notified in writing to employees within one month but now the change must be notified no later than the day the change takes effect.
6. Probationary periods are now limited to six months; but this period can be increased (to a maximum of 12 months) if it can be justified by the employer, or if the employee is absent due to illness or leave. For fixed-term contracts, the length of any probationary period must be proportionate to the expected duration of the contract and the nature of the work and cannot be included in any renewal of a fixedterm contract (for the same function).
7. Transitioning employment: the law now provides that an employee who has completed their probation and has worked in continuous service for the employer for a period of at least six months, may request a form of employment with more predictable and secure working conditions. A reasoned reply to any such request must be issued in writing within one month and furnished to the employee.
8. Double Employment: an employer can no longer prevent an employee from working for another employer, outside of their work schedule, or treat an employee adversely for that reason. There are limited circumstances, known as incompatibility restrictions, where an employer can restrict an employee from working for another employer when it is based on objective grounds. If it applies, then details of the restriction, along with the grounds for objecting to the dual employment must be
documented and included in the contract of employment. Examples of ‘objective grounds’ are contained within the regulations, some of which include, health and safety, protection of business confidentiality, avoidance of conflicts of interests.
9. Variations to terms and conditions: Previously any non- fundamental changes to employee terms and conditions were required to be notified in writing to employees within one month but now the change must be notified no later than the day the change takes effect.
10. Collective Agreements: It is important to cross-check the new requirements against any existing collective agreements as if one is in existence and covers any matters included in the Regulations the provisions of the Regulations will not apply to those employees under that collective agreement.
Our Guidance & Your Key Actions:
✓ Template the 5 Day Statement so that it is ready to issues at pre-employment/ induction stage.
✓ Review and update template contract of employment to include all the additional terms so that it is ready to issue prior to or at latest within 1 month of an employee commencing employment.
✓ Where the working pattern is completely (or mostly) unpredictable, review rostering practices & diarise notice of informing employee of roster at least 72 hours in advance of roster weekly start date.
✓ Create and maintain a list of roles and the social security institutions from which they receive contributions.
✓ Create a checklist to ensure compliance with the nature and form requirement to include retaining a record of transmission or receipt of contract in electronic form, signed and dated.
✓ Review existing probationary clauses and policies and update if necessary to comply.
✓ Create a clear probation management process as a standard within your Organisation. This process should include diarised reviews throughout the employees’ probationary period.
✓ Line managers should receive training on how to best manage interim and end of probationary reviews.
✓ Note the employees currently on probationary periods to check the impact of the new changes on their terms.
✓ Assess mandatory training requirements.
✓ Templated fixed-term contracts should include a pro-rata period of probation. E.g., A 3-month fixed term contract should have 6 weeks probation period.
✓ Create a template response to a request for more predictable and secure working conditions following probationary period and six months service.
✓ Amend double employment and exclusivity clauses in company documentation to reflect any objective compatibility restriction.
✓ Create a change to terms and conditions template letter which can be issued as soon as change is proposed or at latest on the effective date of the change.
Know your obligations, stay compliant, and avoid complaints!
Some of the provisions of the legislation may take some employers by surprise and it can be daunting keeping up with all the HR and Employment Law changes for your growing business. As your Chamber HR partner, Adare Human Resource Management will always endeavor to bring you the latest news, so your business is best prepared to manage these updates.