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.
Legislation Updates June 2022
This month has been quite busy with legislation updates from the Government, read this blog post to find out the most recent updates from this month.
Gender Pay Gap Reporting
On the 3rd of June the Gender Pay Gap regulations were published. Employers with 250+ employees on the snapshot date (chosen by the employer) will have to report on the 12-month period preceding and including the chosen snapshot date on the mirror date in December 2022. In 2024 this will extend to employers of 150+ and in 2025 it will extend to 50+ employees.
To approach the calculation of their gender pay gap metrics, organisations must do the following:
- Choose the snapshot date in June 2022
- The reporting deadline is 6 months after the snapshot date, in December 2022.
- The reporting period is the 12-month period immediately preceding and including the snapshot date
For example: if the organization chooses Tuesday 25th of June as their snapshot date. Its reporting deadline is 25th December, and the reporting period is 24th June 2021 to 25th June 2022.
Statutory Sick Leave Bill 2022
The Statutory Sick Leave Bill has passed the 2nd stage in the Seanad. It is suppose to be in enacted by September 2022.
Read more here: Preparing for New Sick Pay Rules
Work-Life Balance and Miscellaneous Provisions Bill
The Government has approved the drafting of the Work-Life Balance and Miscellaneous Provisions Bill. The purpose of the Bill is to increase the participation of women in the labor market and the take-up of family-related leave and flexible working arrangements.
Read more here: The EU Work-Life Balance Directive Ireland
Parent's Leave and Benefits Act
Lastly, The Parent’s Leave and Benefit Act 2019, which was introduced on the 1st of November 2019, currently provides for 5 weeks of Parent’s Leave for each parent to allow them time off around the birth or adoption of their child or the child of their spouse or partner. Parent’s leave and benefits will increase from 5 to 7 weeks in July.
Look What's Coming: Statutory Sick Pay for 2022
With 2021 drawing to a close businesses must now look forward as to what is to come in 2022 and one change that is likely yo come in 2022 which will affect all employers is the introduction of a compulsory sick pay scheme.
Unlike many European jurisdictions, Ireland has never had a scheme like this. Currently an Irish employer is not, at the moment, obliged to pay employees while they are sick which is about to change due to the Sick Leave Bill 2021 which was published recently and provides for a comprehensive Statutory Sick Pay scheme (SSP).
The key points for employers to note in relation to this scheme are as follows:
1. While the number of eligible days per year will start at a low level, the Government intends that this will increase to two working weeks by the year 2025.
2. SSP will be capped and an employer will only be obliged to pay up to 70% of wages, subject to a cap of €110/day.
3. The Government will not “top up” the employer’s contribution to 100%.
4. Employees will have to have at least 13 weeks of continuous service in order to be eligible.
5. Employees will be obliged to provide a medical certificate in respect of each day of Statutory Sick Leave.
6. If an employer maintains it cannot afford to discharge its SSP obligations, an exemption can be granted by the Labour Court.
7. If an employer already provides more favourable sick leave benefits to an employee, they will not be obliged to comply with the SSP rules.
So what should employers do now? It would be prudent for employers , especially smaller employers, to start financial planning now in order to ensure that they are ready for when the SSP is introduced. Employers should also review any existing sick pay schemes/ policies to check whether the new rules will affect/ change these.
Related Articles:
- The Budget 2022: What You Need to Know
- The importance of having an Absence/Sick Leave Policy
Key Features: Updates to the Work Safely Protocol
Following on from our post The Phased Return to the Workplace , further guidance has been given into the recent government changes effect on the Work Safely Protocol. The Protocol sets out the minimum public health measures required in every place of work to prevent and reduce the spread of COVID-19.
While employers are still expected to comply with their normal health and safety obligations, employers should note that from 22 October 2021 the requirement to work from home will be removed and the statutory regime in place to protect public health will be wound down. Further guidance is expected in advance of that date. So what are some of these key changes:
From 20 September 2021:
- Businesses can begin a phased and staggered return to workplaces for specific business requirements
- Two metre social distancing, the wearing of masks in certain circumstances, hygiene measures and appropriate ventilation remain in place
- Appropriate attendance levels should be maintained in accordance with the Protocol
- Staggered arrangements should be considered, such as non-fulltime attendance and flexible working hours
- Each workplace must have a Lead Worker Representative that works with the employer to prevent the spread of COVID-19 in the workplace, and
- The requirement for self-isolation / restricted movements will continue for those with symptoms, who should immediately seek a test, those with positive test results, and close contacts of confirmed cases, unless fully vaccinated with no symptoms
From 22 October 2021:
- Depending on continued satisfactory vaccination rates, the Government intends to remove further statutory restrictions from this date. In particular, the requirement to work from home will be removed, allowing a return to physical attendance in workplaces on a phased and cautious basis, appropriate to each sector.
- Remote working will become a regular feature of Irish working life as the Government continues to implement Making Remote Work, Ireland’s National Remote Work Strategy, and
- Legal requirements in relation to social distancing and mask wearing will no longer apply in the majority of circumstances. An emphasis on personal responsibility will be encouraged. This means that employees cannot insist on compliance with social distancing, mask wearing or the provision of sanitising equipment or products in the workplace
With employee's returning one of the most important actions for employers to take is to review their risk assessments and health & safety policies. In order to pinpoint how and where could the virus be transmitted in your workplace you must look at the hazards, evaluate the risks and put control measures in place and The Health and Safety Authority has produced checklists to assist in the reopening of workplaces.
In conclusion, the return to the workplace should be conducted in a cautious manner and in consultation with employees. The government is moving towards a focus on personal responsibility from the 22nd of October 2021 and the Government will consult with employers in advance of this date to prepare guidance for the next phase of easing public health restrictions.
Related Articles:
- The Phased Return to the Workplace
- Let's Get Topical - The Vaccine Policy
The Home Stretch: The Final Key Steps in a Safe Employee Return
Following on from our previous blog post 'As Easy As 1,2,3: Key Elements of Safe Return to The Workplace', this blog post covers the next essential steps in your Return to Work Safely Protocol.
4. Complete Pre-Return to Work Forms
5.Provide COVID-19 induction training for all staff
6.Keeping a log of contact/group work to facilitate contact tracing
7.Review other Company Policies
4. Complete Pre-Return to Work Forms
With this step, a pre-return to work form must be completed by employees at least 3 days before their return to work. The form allows employees to self-certify that they do not have Covid-19 symptoms or have not been in close contact with any confirmed or suspected cases over the last 14 days.
You can get a return to work form template directly from the HSA website.
In communicating with employees upon their return to work it would also be advisable to establish whether or not they might be considered as a vulnerable worker. There is a HSE webpage that sets out who high risk groups are, you might consider sending this to employees and asking them to notify you if they fall into any of the categories. If they do fall into a vulnerable category you do have a duty of care to take extra precautions to protect that individual.
5.Provide COVID-19 induction training for all staff
Once staff return to work they should be given Covid-19 induction training. This will include up-to-date public health guidance. Similar to the Lead Representative training, the HSA have an online Covid induction training. Employees can complete the training on their phone, it takes 20 minutes and once completed employees will receive a certificate which you can place on file as a record that the training has been completed. In addition to the HSA training, it would just be recommended that you recap with employees on the specific changes that have been made in your workplace.
6.Keeping a log of contact/group work to facilitate contact tracing
Next is keeping a log of close contact/group work. The purpose of this being to facilitate contact tracing should it be required.
7.Review other Company Policies
And finally, when you’ve done all of the above you may want to look at reviewing and updating some of your existing policies. Previously you may have updated your Sick Leave Policy to reflect Covid-19 illnesses, you now might also want to consider putting in place a Working from Home policy if that is the norm in your company. And we have those updated policies available in Bright Contracts.
As previously mentioned, The HSA are applying renewed energy into workplace compliance so it is important the employers recheck and re-evaluate where they are. Have things become complacent? Are your policies up-to-date? Do you need to remind staff?
Hopefully if you put many of the steps in place last summer, it shouldn’t take you too long to review. But if you are looking for assistance Bright Contracts can certainly help.
For those of you who are using our Bright Contracts package, Bright Contracts has been updated with a template Covid-19 response plan which can be found in the 'Optional Sections' tab of the software. It covers everything referenced just now and more.
The policy has been written closely following HSA guidelines and checklists. We would certainly advise that you review the policy and adapt it to include what is relevant in your organisation, but it is a fantastic blue print to ensure you are addressing all the points you need to.
Related Articles:
- As Easy As 1,2,3: Key Elements of Safe Return to The Workplace
- Our Employees Are Back! – How Do I Return My Employees Safely?
The Vaccine & The New World of Work Webinar
With vaccination rollout currently underway across Ireland employers are beginning to look at returning a number of their employees to the workplace over the coming months which means plans need to be in place and actions need to be carried out to ensure it is as smooth and safe a return as possible.
We recently hosted a webinar recently which detailed for our customers how best to tackle returning their employees to the workplace including implementing a vaccine policy. To view the webinar recording click below:
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry. This policy is in addition to the COVID-19 Response Plan and Temporary Working From Home Policy currently available on Bright Contracts.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today. If you are looking to adopt or change your HR Software book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Employment (Miscellaneous Provisions) Act 2018
The Minister for Employment Affairs and Social Protection, Regina Doherty has confirmed the new Employment Bill, which has been in the pipeline now for a number of years, will come into force on the 4th March. The Bill is being introduced to ‘improve the security of working hours for employees on insecure contracts and those working variable hours’, common in (but not exclusive to) service industries such as hospitality, tourism and retail. These industries often rely on flexibility in the employment contract and therefore the introduction of this new Bill will require them to take note.
The new Act makes certain breaches a criminal offence; where the employer does not comply with the new obligations in the Bill to provide the required information within one month, can lead to criminal prosecution. Fines on conviction could be up to €5,000 or imprisonment of up to twelve months or both. Directors, managers, secretaries or other officers of a company can be individually liable, i.e. be prosecuted individually for offences.
- In summary, the new Act will:
- Prohibit the use of Zero Hour contracts, save for exceptional circumstances
- Obligate employers to notify new employees of five core terms of employment in writing within five days of commencing employment
- Create a new entitlement to ‘Banded Hours’ contracts
- Provide for minimum payments to employees who are required to be available to work but are not actually called to work
The Act also introduces an anti-penalisation provision whereby an employer may not penalize an employee for exercising their rights under the 1994 Terms of Employment Act. An employee who is penalized can be awarded compensation of such amounts as the WRC considers just but will not exceed four weeks remuneration.
The new Act will bring significant changes for Irish employers and employees and according to Minister Regina Doherty; the Act is a “once-in-a-generation reform of our labour market.”
Please visit Brightcontracts.ie for more information on the new Employment Bill which has been in the pipeline now for a number of years and is to be enacted on 4th March 2019.
Related Articles:
How to avoid PAYE Modernisation mistakes
Back to Basics - Disciplinary Steps and Sanctions
Thesaurus Payroll Software | BrightPay Payroll Software | Bright Contracts
What are “banded hours”?
The Employment Act 2018 creates a new right for employees whose employment contract does not accurately reflect the reality of the hours they work on a consistent basis. After a reference period of 12 months, employees will be able to request in writing to be placed in a band of hours that better reflect their average weekly hours worked. In response, employers are obliged to place the employee in the appropriate band and should do so within four weeks of receiving the employee’s request.
The appropriate band is determined by the employer on the basis of the average number of hours worked by the employee per week during the reference period.
The appropriate bands are laid down in law as set out in the below table.
| Band A: | 3 to 6 hours |
| Band B: | 6 to 11 hours |
| Band C: | 11 to 16 hours |
| Band D: | 16 to 21 hours |
| Band E: | 21 to 26 hours |
| Band F: | 26 to 31 hours |
| Band G: | 31 to 36 hours |
| Band H: | over 36 hours |
An employer may refuse to place an employee in a band in one of the following circumstances:
- Where there is no evidence to support the employee’s claim
- Where there have been significant adverse changes to the business during or after the reference period
- Due to exceptional circumstances, an emergency or unforeseeable circumstances beyond the employer’s control
- Where the average hours worked by the employee were affected by a temporary situation that no longer exists
In determining the 12 month reference period, a continuous period of employment immediately before the legislation is to be enacted on 4th March 2019 will be reckonable towards the 12 month reference period. Please visit Brightcontracts.ie for more information on the new Employment Bill which has been in the pipeline now for a number of years.
The Bill is being introduced to ‘improve the security of working hours for employees on insecure contracts and those working variable hours’, common in (but not exclusive to) service industries such as hospitality, tourism and retail. These industries often rely on flexibility in the employment contract and therefore the introduction of this new Bill will require them to take note.
BrightPay Payroll Software | Thesaurus Payroll Manager | Bright Contracts
Data Protection complaints increase since introduction of GDPR
Nearly 4 months since the General data Protection Regulation (GDPR) was introduced across all of Europe, complaints around Data Protection have nearly doubled in the UK and are up by nearly 2 thirds in Ireland.
GDPR was designed to give Data Subjects more control over their personal data, with more transparency and the threat of larger fines to those in breach of the new rules. The GDPR requires any company that suffers a data breach to notify its users/data subjects within 72 hours of the breach being discovered.
• Ireland’s Data Protection Commission (DPC), head of communications - Graham Doyle has said that ‘there has been a significant increase in the volumes of both breaches and complaints to the DPC since May 25th.’ Since GDPR enforcement began the DPC has seen monthly data breach reports double, while data protection complaints increased by 65%.
• Data protection complaints to the UK’s Information Commissioners Office (ICO) rose to 4214 in July compared to just 2310 complaints received in May before the GDPR came into force. A spokes person for the ICO said the increase was expected, as more users became aware of data protection because of publicity around the new rules and following a series of high-profile data scandals involving big technology firms.
Experts note, however that the increase does not mean that the number of data breaches has suddenly gone up, but rather reflects the full scale of the data breach problem becoming better known.
Organisations that fail to comply with GDPR can face fines of up to 4% of annual global revenue or €20 million, whichever is greater. So far none of the EU’s Data Protection Agency’s has issued any fines. Graham Doyle at the DPC said ‘It is too soon to expect to see any fines levied against organizations that have violated GDPR – given its only 3 months after it went into full effect.’
We will be hosting a free online webinar - ‘GDPR 3 Months On’ on Thursday September 20th at 11am, where Graham Doyle will joining us as a guest speaker.
To register for this webinar please click here.
€7,500 awarded for unfair interview questions
The Workplace Relations Commission has awarded €7,500 to a woman they found was discriminated against during a job interview with Minister of State for Training, Skills, Innovation, Research John Halligan. Mr. Halligan, during the course of the interview, said to the woman “I shouldn’t be asking you this, but....are you a married woman? Do you have children? How old are your children?”
Mr. Halligan said that the questions were asked in good faith as he wanted to make her aware that flexible working hours to allow his staff to take care of their families is something that he encourages. The WRC however, found that the questions were discriminatory under the Employment Equality Acts 1998-2005.
The legislation defines discrimination as treating one person in a less favourable way than another based on any of the following 9 grounds:
- Gender
- Civil Status
- Family Status
- Sexual Orientation
- Religion
- Age
- Disability
- Race
- Membership of the Traveller community
When conducting an interview it is important for employers to build rapport with the candidate but they also need aware that asking questions or making comments in relation to the above 9 grounds will leave you at risk of a hefty discriminatory claim, even if you think you are just making small talk.
So what questions are appropriate and inappropriate to ask in a job interview?
Appropriate Interview Questions
- Are you able to perform the specific duties of this position?
- What days can you work? What hours can you work?
- Are you available to work overtime on occasion?
- Are you available to travel on occasion?
- Are you able to start work at 8 am?
- What are your long-term career goals?
- Do you have any responsibilities that would interfere with traveling for us?
Inappropriate Interview Questions
- Do you have or plan to have children?
- If you get pregnant, will you continue to work, and will you come back after maternity leave?
- What are your child care arrangements?
- Are you married /engage?
- How many children do you have? Do you have a babysitter available if we need you on a weekend? Do the working hours fit with your childcare?
- Do you have a baby or small child at home?
Employment and equality legislation doesn’t just start once you hire someone, it’s applicable the moment you post a job advert. With this in mind employers need to be mindful of what they say even when making small talk and building rapport with candidates before and after the job interview.
To view our full Interviewing Guidelines click here
Also see our blog ‘Be careful of discrimination in job interviews’ here
To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here
