knowledge 17 January 2023 |

The Transparent and Predictable Working Conditions Regulations

In brief, the Regulations make 8 principal changes of which employers should now take note:

1. A 6 month limit will now apply to probationary periods for most new-hires in the private sector. The maximum duration for a public servant's probationary period is now 12 months;
2. Employers will no longer be able to require exclusive service from their employees without further justification;
3. A range of new terms (set out below) will now need to be included in an employee’s statement of terms of employment and the five-day statement;
4. The time period in which an employer must furnish the statement of terms of employment has been shortened from 2 months to 1 month;
5. Certain employees will be able to refuse work without adverse consequence where the work is scheduled outside pre-agreed reference hours;
6. Employers who are required by law or by a collective agreement to provide training to an employee for their role must now provide that training without cost as part of the employee’s working time and during working hours where possible;
7. Employees who have completed their probationary periods may request ‘more predictable and secure working conditions’ from their employers (where this is an option);
8. The cohort of individuals to whom the statement of terms and the five-day statement must be furnished has been widened.

1. The Probationary Period

While 6 months is now the limit for most new-hires, there are a number of important caveats:

1. The 6 month period can be extended to 12 months where it would be in the interests of the employee;
2. Where the employee is absent from work during their probation, the 6 month period is suspended for the duration of that absence;
3. For fixed term contracts, the 6 month rule does not apply. Rather, the probationary period must be ‘proportionate’ to the overall length of the contract term.

Furthermore, any probationary period which exceeds 6 months and for which an employee has already completed 6 months shall expire, at the latest, by 1 February 2023.

2. Exclusivity of Service

Employees may no longer be restrained without reason from working for another employer outside their work schedule, or face adverse consequences from their employers for doing so.

A restriction against a second job is permitted where that restriction is proportionate, and justified on objective grounds. This restriction and its justification must be included in the contract of employment or the statement of terms provided to the employee or in a separate written statement.

A non-exhaustive list of such objective grounds is included in the Regulations, among which are the following examples:

1. health and safety;
2. the protection of business confidentiality;
3. the integrity of the public service;
4. the avoidance of conflicts of interests;
5. safeguarding productive and safe working conditions;
6. the protection of safety of patients and people receiving care from the health service;
7. the protection of national security;
8. the protection of critical national infrastructure;
9. the protection of energy security;
10. the administration of vital public service functions;
11. compliance by the employer and the employee with any applicable statutory or regulatory obligations;
12. compliance by the employee with any professional standards for the time being in force.

In most cases, example (k) should suffice in preventing most full-time employees from working a second job, since to do so would likely lead to an employee performing longer hours than the weekly limit on working time under the Organisation of Working Time Act 1997.

Further grounds are set out for employees working with or for the Health Service Executive.

3. The New Terms

Currently, an employee must be provided with a statement of certain terms of employment within 5 days of commencing their employment (the “five-day statement”). Additional terms, most of which were previously required to be furnished within 2 months, must now be included within the five-day statement:-

1. In circumstances where there is no fixed or main place of work, a confirmation that the employee shall work from various places or is free to determine their own place(s) of work;
2. the title, grade, nature or category of the work, or a brief specification or description of the work;
3. the date of commencement of the employee’s contract of employment;
4. any terms or conditions relating to hours of work (including overtime);
5. The duration and conditions of any applicable probationary period.

Within one month of commencing employment, an employer must now provide the statement of the employee’s terms.

That statement must also include the following new terms:

1. The training entitlement, if any, provided by the employer;
2. The identity of the user undertaking, where the employee is under a temporary contract of employment and engaged in temporary agency work;
3. Where the work pattern of the employee is mostly or entirely unpredictable, the employee must be informed of the following;
   • i. The principle that the work schedule is variable;
   • ii. The number of guaranteed paid hours;
   • iii. The remuneration for work performed in addition to those guaranteed hours;
   • iv. The “reference hours and days” (i.e. the time slots in specified days during which work can take place at the request of the employer) within which the employee may be required to work;
   • v. The minimum notice to which the employee is entitled before the start of a work assignment and, where it applies, the 24-hour notice deadline imposed by the Organisation of Working Time Act 1997 before which an employer must inform an employee of when they will normally be required to start and finish work on each day of a given week.
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4. The identity of the social security institutions receiving the social insurance contributions attached to the contract;
5. Any protection relating to social security provided by the employer;

As mentioned, the Statement of Terms must now be furnished within one month of the commencement of employment.

4. The right to refuse

The Organisation of Working Time Act 1997 has been amended to allow an employee to refuse to do work without adverse consequence where the employer has failed to ensure that the work takes place within the predetermined reference hours and days.

5. The right to request

An employee who has been in the continuous service at least 6 months and who has passed their probationary period may request a form of employment with more predictable and secure working conditions where such conditions are available.

This request can be made once every 12 months and the employee in entitled to a reasoned written reply from the employer after the first request (and every subsequent request where the employee’s situation has changed).

6. To whom do these Regulations apply?

The statement of terms of employment and the five-day statement must be provided to any person engaged under a contract of employment. However, the definition of a contract of employment has been widened significantly to include circumstances where “an individual agrees with another person personally to execute any work or service for that person”.

While an individual will still be required to have 1 month of continuous service in order to be entitled to the statement of terms, this new definition arguably captures a large number of contractors who have hitherto not been provided with any five-day statement or the statement of terms.

Conclusion

In light of these changes, employers should now review their template employment contracts and update them as necessary in order to comply with these additional obligations in respect of new-hires.

Similarly employers should be aware that there will be a cut-off point on 1 February 2023 for any live probationary periods of which an employee has already completed 6 months.

Finally, in respect of the existing workforce, employers should take note that employees who were employed before the commencement of these Regulations may now request updated statements of the terms which contain the additional information set out above.

Please contact us if you require any guidance in respect of the many changes brought in by these Regulations.

Also contributed to by Jack Larkin.