Employer's Guidance on the Transparent and Predictable Working Time Regulations

With the introduction of the Transparent and Predictable Working Time Regulations, many of our clients are considering what the practical implications are when it comes to dealing with probation periods and contracts;

Probationary Periods

The new regulations now restrict employers when it comes to probation periods. Employers cannot set probation periods which are longer than six months, unless exceptional circumstances apply, but in such a case it must be ‘in the interest of the employee do to so’.

So, what does this mean in practical terms for employers?

Well, effectively it means that extending a probation period should be the exception rather than the rule. Employers may still extend, but only if it is for the benefit of the employee, such as it could be to the benefit of the employee to extend the probation, if the alternative is a decision to terminate. However, it remains to be seen how the WRC will interpret this and we recommend employers exercise caution from flippantly extending probation periods, and should make a concerted effort to review the employees’ performance during the initial six month period, thereby identifying issues as early as possible and limiting the number of occasions when it is necessary to extend a probation period to exceptional circumstances only.

If an employee is absent during the probation period, the regulations do allow you to extend the probation period to reflect this.

Do employers need to remove the extension clause from contracts?

Employers should not remove clauses that allow them to extend the probation period but should tailor them to reflect the regulations, in that they should allow for an extension on an exceptional basis and where such an extension is ‘is in the interest of the employee’.

We recommend you contact MSS-The HR People for further guidance or review of probation clauses, and that you implement probation reviews so that you can demonstrate, if challenged, that an employee’s performance was being assessed from day one and that extending their probation period wasn’t due to a laissez-faire attitude towards assessing performance earlier than the six-month deadline.

Terms and Conditions

The Regulations have extended the amount of information that needs to be imparted to employees within the mini statement of terms as per the Employment Miscellaneous Provision Act 2020.

Previously employers were required to ensure that they issued a mini-statement of terms, within the first five days of employment, including the following;

• The full name of the employer and the employee
• The address of the employer
• The expected duration of the contract
• The method of calculating pay and the pay reference period
• The expected length of the working day and week
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This information has now been extended and employers must also ensure the following is reflected in their mini- statements;

• Duration and condition of the probationary period, if one is in place.
• The location of work or where there is no fixed or main place of work, confirmation that the employee is employed at various places or is free to determine their own place of work.
• The commencement date, title, grade, nature or category of work, or a brief specification or description of work and details of the terms and conditions relating to hours of work (including overtime).
• 
  

Timeframes for Issuing Terms and Conditions

Importantly, another change is that employers must now ensure they issue a full statement of Terms and Conditions of employment to employees within one month of their commencement of employment, as opposed to the two-month period previously required.

Employers should ensure they make a note of this one-month period, as soon as an employee starts, so that they do not allow any employee to pass this date without receiving a full statement of terms. Failure to do this will be a breach of the Act and could result in an award of up to four weeks’ payment as compensation against the Company.

In line with best practice, we recommend that employers issue a full statement of terms and conditions before an employee commences in their role with you, as this avoids the requirement to issue a mini statement and also failure to do this can result in unnecessary delays and administrative burdens chasing paperwork. 

Changes to the definition of a contract of employment

The Regulations have expanded the definition of contract of employment to now include ‘an individual agrees with another person personally to execute any work or service for that person’. Generally speaking, this means that employees who are working under a ‘self-employed’ arrangement could be deemed to be an employee.

It has always been the case that the status of those working for an employer on a ‘self-employed’ basis could be subject to challenge and review by the revenue or through industrial bodies such as the WRC, in relation to whether or not they should be deemed to be an employee.

These new regulations further emphasize the importance for employers in assessing the legitimacy of any ‘self-employed’ arrangements, to ensure that those entitled to receive any employment law entitlements, do so.

We also offer advice on DISMISSAL DURING PROBATION - An Employers Guide

For further advice and guidance on self-employment or on any other matters outlined above, as always, feel free to contact the team at MSS- the HR People