Signing of the Transparent and Predictable Work Conditions Regulations 2022

On 16 December 2022, the government signed into law the European Union (Transparent and Predictable Working Conditions) Regulations 2022 to fulfill Ireland's obligations under EU Directive 2019/1152 on transparent and predictable working conditions.Employers should be aware of the changes resulting from this legislation. In addition to creating new employee rights, the Regulations amend employers' obligations under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, and the Protection of Employees (Fixed-Term Work) Act 2003.

With limited exceptions, the Regulations apply to all employees in Ireland, except for those with less than four consecutive weeks' service or working fewer than three hours per week.

Employers must now provide general written terms of employment to their employees one month after they begin employment. The information employers must provide within 5 days of the start of employment and within one month has also been changed.

The written statement of employment must be:

• signed and dated by the employer,
• in writing, and
• It may be transmitted on paper or electronically, provided the employee has access to it, the employee can store and print it, and the employer retains proof of its transmission or receipt.

If an employee's terms are changed, the employer must notify the employee in writing as soon as the change takes effect.

Probationary Periods

There have been significant changes to probationary periods. It is no longer possible to extend probationary periods beyond 6 months except in exceptional circumstances, and even then not beyond 12 months unless this would be beneficial to the employee. The duration of employee absence can be taken into consideration when extending a probationary period. In the event that an employee (other than a public servant) is subject to a probationary period exceeding 6 months and has completed at least 6 months service, the probationary period will end on the earlier of:

• the date on which the probationary period was due to expire, or
• 1 February 2023

As a final point, the Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).

Mandatory Training

If an employer is required by law or by a collective agreement to train an employee, this training must include the following:

• be provided to the employee free of cost,
• count as working time, and
• where possible, take place during working hours.

Parallel Employment & "Incompatibility Restrictions"

The Regulations provide that an employer must not:

• prohibit an employee from taking up employment with another employer, outside the work schedule established with the first employer, or
• subject an employee to adverse treatment for taking up employment with another employer.

An employer may prohibit an employee from taking a job with another employer if the restriction is proportionate and objective. Where an employer imposes an "incompatibility restriction":

• details of the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based) must be included in the contract, or
• the employer must provide a statement in writing setting out the incompatibility restriction (including details of the objective grounds on which the incompatibility restriction is based).

According to the Regulations, objective grounds include health and safety, business confidentiality, and avoiding conflicts of interest.

 Collective Agreements/REAs

If the employment in question is covered by a collective agreement approved by the Labour Court or a Registered Employment Agreement, then the Regulations are disapplied in respect of probationary periods, the right to seek additional (parallel) employment, and the right to request transfer to a job with more predictable and secure working conditions and training.

Through more transparent and predictable employment, the Directive aims to improve working conditions. Among other things, it expands the information that must be provided to employees upon beginning employment and introduces new provisions such as the right to request transition to another form of employment with more predictable and secure working conditions (Article 12) and the right to mandatory training. 

Employment outside the State and Changes for Posted workers

Also included in the Regulations is a new obligation to provide information to posted workers. Employees who are posted workers (under the European Union (Posting of Workers) Regulations 2016) must be given the following additional information:

• Employee's remuneration according to the host country's legal requirements,
• Travel, board, and lodging allowances and reimbursement arrangements specific to postings
• The URL of the single official national website (IMI Regulation, Regulation (EU) No 1024/2012) that is developed by the host Member State.

Additionally, the Regulations require employees working outside the State for a period of not less than one month to receive more information. It is now required of the employer to also tell the employee which country or countries the employee will be working in outside the State.

Right to request transfer to more predictable and secure working conditions

Once in a 12 month period, an employee who has been employed continuously by an employer for at least 6 months and has completed their probationary period (if any) may request a form of employment with more predictable and secure working conditions. Within one month of receiving such a request, an employer must provide a reasoned written response. When the same worker submits a similar request again, and the situation remains the same, employers may provide an oral reply.