Employment (Miscellaneous Provisions) Act, 2018 – Banded Hours and Five Terms in Five Days
The Employment (Miscellaneous Provisions) Act came in to being on 4th March 2019, bringing with it several changes to existing employment legislation, which have had a notable effect on employers in Ireland.
This article focuses on changes as a result of the new Act to the following two pieces of employment legislation:
1. Terms of Employment (Information Act) 1994
2. Organisation of Working Time Act, 1997
Changes to Terms of Employment (Information Act) 1994 – Five Terms
Employers must now provide a written statement to an employee, within the first five days of their commencement of employment, detailing the following five terms:
1. Full names of both the employer and the employee.
2. Address of employer.
3. Expected duration of the contract in the case of a temporary contract, or the contract end date if it is fixed term.
4. Rate or method of calculation of the employees pay.
5. Number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.
The original provision requiring an employer to provide a full statement of an employee’s terms and conditions of employment within two months remains unchanged. Only these five terms are required within the first five days of employment.
In reality, it might be simpler to now actually provide the contract of employment within the first five days, rather that the five terms within five days and the full contract of employment within two months’ of commencement.
We would always guide employers to provide an offer letter and contract of employment, and to have it signed and returned, in advance of commencement of the new employee. This would normally be done after references are checked, certificates of qualification are provided, medical declarations or medicals are completed, and so on depending on the requirements of the business. After which, the employer would be advised to provide an offer letter and contract of employment, and to have the signed contract returned prior to commencement.
Changes to Organisation of Working Time Act, 1997
Three major changes have been made to the Organisation of Working Time Act, specifically:
1. Prohibition of zero hours contracts – these contracts are now banned from use except in very limited circumstances i.e. where work is of a casual nature, to respond to an emergency circumstance or to provide short term relief for routine absence
2. Requirement of minimum payment in certain circumstances – where an employee has made themselves available for work but has not been provided with hours, he/she is now entitled to a minimum payment. There are three scenarios as to how this minimum payment is calculated.
3. Entitlement to banded hours – where an employee works regular but variable hours they can request (after 12 months) to be placed on one of 8 new bands regarding hours which will more accurately reflect their weekly hours. Employees must be guaranteed an average of the hours in their band over a 12 month period.
For existing employees, the employee must have 12 months’ of continuous service and must request, in writing, to move to the banded hours.
For new employees, we recommend that the employee is placed on a particular banded, perhaps a conservative or low band in circumstances where the hours of work are difficult to predict or foresee.
The changes that have come in with the Act have provided a welcome protection for employees that to date have been in precarious working arrangements with their employers.
However, certain flexible working arrangements which can suit both employers and employees, have potentially been negatively impacted as a result of the changes.
These changes will require you to:
- Review recruitment processes and ensure that the written statement of the five core terms of employment are issued within five days of a new employee starting
- Where zero hours contracts have been used, if you have not already done so, put a plan in place to discontinue them and assess whether there is scope to avail of the limited exceptions for using them in the future
- Audit contracts of employment and identify groups of employees who frequently work in excess of their contracted weekly working hours.
How we can help
We provide employers with support and advice, by phone, email and face-to-face, for all employment law and HR matters.
We can advise and guide you regarding the above and assist with taking action to audit this area.
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