While some new or anticipated employment legislation has been well-flagged in advance by the government, significant changes to the law were implemented shortly before Christmas with little fanfare or advance warning. The European Union (Transparent and Predictable Working Conditions) Regulations 2022, however, will have a significant impact on employment in a variety of sectors. Our Adrian Twomey reviews the Regulations.
The EU Directive on Transparent and Predictable Working Conditions (Directive 2019/1152) sought to guarantee a range of new rights for employees. Those rights included:
a six-month limit on the length of probationary periods;
the right to take up another (second) job with another employer;
the right to be informed in advance when work will have to be done;
the right to receive a written reply to any request for transfer to a more secure job; and
the right to receive cost-free mandatory training related to the employee’s job.
All EU Member States were obliged to implement the Directive by 1 August 2022. Ireland, as is so often the case, was late in implementing the Directive. The necessary Regulations were not signed into law by Leo Varadkar until 16 December 2022 and published in Iris Oifigiúil four days later. As a result, the introduction of the Regulations will have been missed by many people in the immediate run-up to Christmas, particularly in light of the absence of the fanfare that has accompanied other proposed changes to employment law in recent years.
The Irish Regulations will have a significant impact. The first key change is the restriction that has been imposed on probation periods. Many existing employment contracts provide for probation periods of up to one year in duration. Now, under the Regulations, probation periods cannot normally exceed six months (save where the employee is a public servant). The Regulations do provide that probation periods can, on an exceptional basis, last for up to twelve months where that is “in the interest of the employee”. Quite what that means is yet to be clarified, but a reasonable interpretation might be that probation periods can be extended out beyond six months to allow an employee to achieve targets linked to their probation period where the employee would otherwise be dismissed. However, we would advise that employers err on the side of caution and:
immediately restrict probation periods to six months; and
make definite decisions as to whether or not employees have passed probation during that period.
Employers should note that where an employee’s contract of employment provides for a probation period of longer than six months, that probation period is now deemed to have expired if the employee has already completed six months of service.
Employers should note that the Regulations have a series of other effects, including the following:
Where employees are employed under fixed-term contracts, the length of any probation period must be proportional to the duration of the contract.
Contracts can provide for the extension of probation periods by periods equivalent to the duration of any absence from work.
Written statements of terms and conditions of employment, signed and dated by the employer, must be provided to employees within one month of their commencing employment (employers must retain proof of same).
Very importantly, employers cannot prohibit employees from taking up employment with another employer, i.e. double-jobbing, save that the employer may, in limited circumstances, implement such a restriction where that is proportionate and objectively justifiable. The details of the objective reasons justifying any such restriction must be furnished to the employee in writing.
The changes introduced by the Regulations are significant and employers are strongly advised to consider them carefully and revise their employment contracts to ensure that they are in accordance with the new law.
Those who require advice in relation to employment law issues or who need representation before the WRC or Labour Court can contact our Adrian Twomey.