The European Union (Transparent and Predictable Working Conditions) Regulations 2022 which entered into force on 16/12/2022 has implications in particular for contracts of employment.
The new Regulations have an impact on:
- Additional employment
- Information to be provided to new employees (Day 5 statement, and T&C’s statement)
- Changes to terms and conditions of employment
- Mandatory training of employees
Thus, the new Regulations may require many employers to:
- Review and update their contracts of employment with special reference to
- probationary clauses and
- restricting employees from taking up additional employment outside their work for that employer
- Review and update their probationary policies, and
- Day 5 statement and the Terms and Conditions of Employment statement/Contract
The new Regulations introduce (with effect from 1/08/2022) a statutory limit of 6 months on the probationary period.
Only in exceptional circumstances can probation be extended beyond 6 months up to a maximum of 12 months.
If the employee is absent on leave e.g. sick leave or maternity, then probation can be paused for the period of that leave.
For fixed-term contracts, the probationary period must be proportionate to the length and nature of the contract. So if the fixed term contract is for 6 months, a probationary period of 6 months would be disproportionate. A probationary period of 2 or 3 months would be proportionate in this context.
If a fixed-term contract is being renewed for the same role, a probationary period cannot be included again in the contract.
The new Regulations prohibit employers from restricting employees from taking up additional work outside their work for that employer. In other words, employers cannot insist on exclusive service.
Employers can restrict an employee from taking up additional work if it is based on objective grounds.
Examples of objective grounds include but are not limited to:
- Health and Safety – e.g. if an employee had a second job at night time (DJ/Security) which caused tiredness that then posed a health and safety risk at that work
- Protection of business confidentiality – e.g. the second work was a direct line competitor and an employee was sharing information on client or business processes
- Compliance with statutory or regulatory obligations – e.g. exceeding average working hours of 48 over a 4-month period
Where an employer restricts an employee from taking up additional employment they must provide details of the objective grounds (1) in the contract or (2) in a statement in writing.
Information to be provided to New Employees
Day 5 Statement
The Regulations have also expanded the information to be provided under the day 5 statement. The following table shows the information to be provided in the day 5 statement pre and post the Regulations.
There are an additional five items to be provided in the 5 day statement.
Terms and Conditions of Employment Statement
The Regulations have also changed what information is to be provided under this the Terms of Employment (Information) Act 1994 and when that information has to be provided.
The Regulations now require the information to be provided within one month rather than within two months which was the requirement pre the regulations.
The additional information to be provided within one month includes:
- Training provided
- End user if an agency worker
- For unpredictable work hours/patterns
- Reference to the variable schedule
- Number of guaranteed hours
- Payment for hours above the guaranteed hours
- Days when the employee may be required to work
- Minimum notice period before start of work
- Identity of recipient of social insurance contributions
Changes to Terms and Conditions of Employment
Previously employers were required to notify an employee of any change to terms and conditions within one month but now this is changed to no later than one day.
Where an employer is required by law or collective agreement to provide training to an employee to carry out work for which they are employed, this training will be provided to the employee free of cost and shall count as working time.