On 20 June 2019, the European Parliament and Council adopted the Directive on Transparent and Predictable Working Conditions (“the Directive”). The Directive repeals Directive 91/533 EEC on an employer's obligation to inform employees of the conditions applicable to the employment contract or relationship. The Directive is yet to be transposed into Irish law despite the recent passing of the transposition deadline of 1 August 2022. No draft legislation has been produced to date.
What is the purpose of the Directive?
The Directive introduces more complete information on the essential aspects of the work to be received by the employee in writing at the beginning of the employment relationship. Its ambition is to provide each type of employee with clarity as to their terms and conditions of employment. It is intended that the Workplace Relations Commission (“WRC”) shall act as adjudicator in any employment disputes arising from implementation of the Directive, with the Labour Court acting as the Appeals Body.
Key Provisions of the Directive
1. Maximum duration of probationary periods: Irish law does not currently set out a maximum probationary period. Under the Directive, probationary periods shall not exceed six months. In the case of fixed-term contracts, this length should be proportionate to the expected duration of the contract and nature of the work.
Where a contract is renewed for the same function and tasks, the employee shall not be subject to a new probationary period. Employers may, on an exceptional basis, provide for longer probationary periods where this is justified by the nature of the employment, or, in the interest of the employee.
Where the employee has been absent from work during the probationary period, employers may provide that the probationary period can be extended proportionate to the duration of the absence.
2. More complete information about the employment relationship: Employers are already legally obliged to provide employees with certain information within 5 days of commencement of employment and a written statement of terms of employment within 2 months of commencement of employment.
The Directive complicates this by adding two further deadlines:
- “Basic” information which has to be provided within seven days of an employee starting their employment; and
- “Supplemental” information which has to be provided within one month.
The imposition of four different deadlines will most likely cause difficulties in circumstances where there will be a duplication of obligations. It is unclear how the Irish legislation will deal with this. In any event, the Directive has placed the following obligations will apply to employers:
The name of the employer and employee
The name of the employer and employee
The training entitlements provided by the employer (number of training days and training policy)
If there is no place of work, confirmation that the employee can work at various places
The address of the employer in Ireland
The place of work or the place at which the employee will work in circumstances where the employee can determine their own place of work
The employee’s paid leave entitlements
The terms and conditions relating to paid leave and on sickness absence
The expected duration of a temporary contract or, for a fixed term contract, the date the contract ends
If there is a fixed term contract in place, the date the contract ends or the expected duration
The process to be following for termination of employment, including notice periods
The notice periods
The method of calculation of pay and the pay reference period for the purposes of the National Minimum Wage Act, 2000
The details about pay including frequency and payment method
Details of any applicable collective agreements
Details of any collective agreements
The number of hours that the employer reasonably expects the employee to work in a normal working day and normal working week
For predictable working patterns:
The length of standard working day or week
The identity of social security institutions receiving contributions and protections relating to social security provided by the employer
The terms and conditions on pensions
The length of probationary period, and applicable conditions
For agency workers – the identity of the end-user entity
Confirmation that the employee can request a written statement of average hourly pay
The start date
The start date
(a) job title, grade and nature or category of the work or
(b) a description of the work
The title of the job or nature of the work for which the employee is employed
3. Mandatory training: Where an employer is required by law or a collective agreement to provide training to a worker to carry out the work for which they are employed, the training must be at no extra cost to the employee, count as working time and shall take place during working hours where possible.
4. Exclusive service: Employers will be prohibited from restricting employees from taking up parallel employment. However, member states may lay down certain provisions to deal with any difficulties that may arise from this provision for example, health and safety (working hours), conflicts of interests and business confidentiality.
5. Minimum predictability of work: Employee’s rights have been expanded in this regard under the Directive. Where a worker’s work pattern is unpredictable, the worker shall not be required to work by the employer unless the work takes place within predetermined reference hours and days.
An employee shall have the right to refuse a work assignment without adverse consequences where a work assignment falls outside of the reference hours and days, or, if the worker is not notified of the work assignment in accordance with a reasonable notice period.
6. Right to redress and protection against adverse treatment: Under the Directive, employees have the right to submit a complaint to a competent authority i.e. the WRC and to receive adequate redress in a timely and effective manner.
Employees and their representatives are protected from any adverse consequences, including dismissal resulting from a complaint lodged with the employer, or resulting from any proceedings initiated with the aim of enforcing compliance with the rights provided for in the Directive.
Employees who consider that they have been dismissed on the grounds that they have exercised their rights in the Directive, may request the employer to outline the basis for the dismissal.
7. Transition to a more predictable form of employment: Where an employee with at least six months’ service with the same employer has completed their probationary period, if any, they may request a form of employment with more predictable and secure working conditions where available. The employee is entitled to receive a reasoned written reply. The employer must then provide the written reply within one month of the request. This builds upon the existing employee entitlement under Section 16 of the 2018 Act to request banded hours where the employee believes their contract of employment or statement of terms of employment does not reflect the number of hours worked per week.
8. Employees sent overseas: Employers are already required to provide certain information to employees who work outside of Ireland for more than one month. The Directive expands this obligation to include providing information about local law remuneration entitlements, applicable allowances, arrangements for expensing travel, food and accommodation, as well as providing a link to an official national website, which sets out the terms and conditions which apply to employees posted to the host country.
Key takeaways for employers
The purpose of the Directive is not to serve as grounds to reduce the general level of protection already in place for employees, but rather enhance them. We recommend that employers review its employees’ contracts of employment to assess the changes which may need to be made in light of the Directive. However, we suggest deferring any changes being made until the implementing legislation (and any guidance) is published.
For further information on the Directive or for any advice regarding the terms and conditions of employment contracts and workplace policies, please contact Mary Gavin or Amy McNicholas of our Employment & Corporate Immigration team on 01 639 3000.